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DOCUMENT RESUME 



ED 364 208 



IR 016 294 



AUTHOR 
TITLE 



INSTITUTION 

PUB DATE 
NOTE 

AVAILABLE FROM 



PUB TYPE 



EDRS PRICE 
DESCRIPTORS 



IDENTIFIERS 



Vlcek, Charles W. 

Adoptable Copyright Policy: Copyright Policy and 
Manuals Designed for Adoption by Schools, Colleges & 
Universities. 

Association for Educational Communications and 

Technology, Washington, D.C. 

92 

119p. 

Association for Educational Communications and 
Technology, 1025 Vermont Ave., N.W., Suite 820, 
Washington, DC 20005 ($34.95). 

Books (010) — Guides - Non-Classroom Use (055) — 
Legal/Legislative/Regulatory Materials (090) 

MF01/PC05 Plus Postage. 

Broadcast Industry; Computer Software; ^Copyrights ; 
Elementary Secondary Education; Faculty; *Fair Use 
(Copyrights) ; ^Federal Legislation; Films; 
Guidelines; Higher Education; Legal Responsibility; 
Models; Plagiarism; Policy Formation; ^Reprography; 
Students 

^Copyright Compliance 



ABSTRACT 

This book was written to help educational 
institutions and their faculty and students meet the responsibilities 
of U.S. copyright law. Part I is a model board policy written for 
large or small school district or college and university boards. The 
policy can be modified to meet specific needs. Part II contains the 
details and procedures applying to faculty use of copyrighted 
material, designed as a manual that can be changed to meet changing 
needs without requiring board approval. This part includes: (1) an 
overview of copyright law; (2) a synopsis of the law as it applies to 
commonly-used media; (3) a description of the role of an 
institutional copyright officer who can manage the details of the law 
and provide staff training; (4) a quick guide to the copyright law 
for faculty; and (5) information on how to obtain permission for 
duplicating copyright materials. Part III, which is written by Jerome 
K. Miller, is an adoptable student copyright manual. Appendixes 
include accepted guidelines for classroom copying of print materials, 
music, broadcast programming, and software; guidelines for 
photo-copying for interlibrary loans; permission forms; addresses of 
selected institutions granting copyright permission; and selected 
passages from the copyright law. (Contains 21 references.) (KRN) 



***********************************************************^ 

* Reproductions supplied by EDRS are the best that can be made * 

* from the original document. * 

******************************* **************************************** 



U.S. DEPARTMENT OF EDUCATION 

Office ol Educational R«t*arch and Improvement 

EDUCATIONAL RESOURCFS INFORMATION 
CENTER (KMQ 

□ This document has been reproduced as 
received from the person or organization 
originating it 

□ Minor changes have been made to improve 
reproduction quality 



• Pomti of view or opinions stated in this docu- 
ment do not necessarily represent official 
OERI position or pohcy 



Adoptable Copyright Policy-. 

Copyright Policy and Manuals 

Designed For Adoption By 
Schools, Colleges & Universities 



By 

Dr. Charles W. Vlcek 



o 

ER?C 




"PERMISSION TO REPRODUCE THIS 
MATERIAL HAS BEEN GRANTED BY 

Karen G. DeLong 



TO THE EDUCATIONAL RESOURCES 
INFORMATION CENTER (ERIC)." 



COPYRIGHT INFORMATION SERVICES 



BEST COPY AVAILABLE 



COPYRIGHT INFORMATION BULLETIN 
SERIES 



1 . Jerome K. Miller, Using Copyrighted Videocassettes in Classrooms 
and Libraries, 1984 (out of print). 

2. Charles W. Vlcek, Copyright Policy Development: A Resource 
Book for Educators, 1987. 

3. Jerome K. Miller, Using Copyrighted Videocassettes in Class- 
rooms, Libraries, and Training Centers, 2nded., 1987. 

4. Esther R. Sinofsky, A Copyright Primer for Educational and 
Industrial Media Producers, 1988 (out of print). 

5. Jerome K. Miller (Ed.), Video Copyright Permissions: A Guide to 
Securing Permission to Retain, Perform, and Transmit Television 
Programs Videotaped Off the Air, 1989. 

6. Charles W. Vlcek, Adoptable Copyright Policy: Copyright Policy 
and Manuals Designed For Adoption by Schools, Colleges & Universities, 
1992. 

7. Leonard DuBoff, High-tech Law (In Plain English®): An Entrepre- 
neur's Guide, 1991. 

8. Ruth H. Dukelow, The Library Copyright Guide. 1992. 



Available from: 
Association for Educational Communications and Technology 
1025 Vermont Avenue, NW, Suite 820 
Washington, DC 20005 



ii 



Copyright © 1992 by the Association for 
Educational Communications and Technology 



All Rights Reserved 



COPYRIGHT INFORMATION SERVICES 



An imprint of the 
Association for Educational Communications and Technology 
1025 Vermont Avenue, NW, Suitr 820, Washington, DC 20005 



Printed in the United States of America by 
BookCrafters, Chelsea, Michigan 



The Association for Educational Communications and Technology is an international 
professional association dedicated to the improvement of instruction through the effective 
useofmcdiaand technology. Periodicals, monographs, videotapesandaudiotapesavailable 
through AECT meet the needs of media and learning resource specialists, educators, 
librarians, industrial trainees, and a variety of other educational technology professionals. 



iv 



Table of Contents 



Preface vii 

About the Author ix 

Site License Information x 

Part I: Adoptable Board Copyright Policy 1 

Part II: Adoptable Faculty Copyright Manual 5 

Chapter 1 : Overview 7 

Chapter 2: Applying the Law to Specific Media 2 1 

Chapter 3 : Copyright Management 45 

Chapter 4: Copyright Quick Guide 47 

Chapter 5: Obtaining Permission 57 

Part III: Adoptable Student Copyright Manual 59 

Appendices 63 

Selected Bibliography 1 1 1 



Dedication 



To those who must contend with 
the obfuscated copyright law. 



The opinions contained herein 
reflect the author's informed opinion 
but do not constitute legal advice. 



ERIC 



Preface 



Many educators urged me to write this adoptable Board Policy 
and Faculty Copyright Manual. Both are needed today to meet the 
complex responsibilities under the U.S. copyright law. The Board 
Policy (Part I of this book) was written to help school district, college 
and university boards establish a protective copyright policy . The model 
Board Policy was written for large or small institutions and can be 
modified to meet specific needs. It states the board's determination to 
observe the copyright law, establishes responsibility for infringements, 
informs the faculty that they must observe the law, and creates implem- 
entation and enforcement procedures. 

The specifics of what, when, where and how employees may 
use copyrighted materials were deliberately excluded from the Board 
Policy to reduce the need for frequent policy changes. Instead, the 
details and procedures appear in the Faculty Copyright Manual (Part II 
of this book). As an administrative document, the manual can be 
changed to meet changing needs, without requiring board approval. The 
Faculty Copyright Manual restates the board policy and provides 
specific guidelines for many situations. Detailed explanations are 
purposely deleted, but footnotes direct readers to other sources. 



vii 



t 



Finally, a brief Student Copyright Manual appears in Par. UI. 
It was written to help students understand the purpose of the copyright 
law and its application to their studies. 

To facilitate the implementation of this Board Policy, Faculty 
CopyrightManual,andStudentCopyright Manual, the publisher agreed 

to publish them in both book and electronic format, with a license 
authorizing campus-wide, or district-wide duplication and distribution. 
If any of these documents are adopted by a multi-campus college or uni- 
versity, a multi-campus duplication and distribution 'license is available 
from the publisher for a modest price. 

I hope I have succeeded in meeting your needs. 

Charles W. Vlcek 



viii 



About the Author 



7 

Charles W. Vlcek attended public schools in Eau Claire, 
Wisconsin and has bachelor and master degr 5es from the University 
of Wisconsin-Stout and an Ed.D. in Educational Media from 
Michigan State University. 

He has been a high school teacher and media coordinator in 
the Milwaukee and Eau Claire, Wisconsin, public schools. He is 
presently Coordinator of Media Library Services and Professor of 
Instructional Media at Central Washington University. He has held 
consultantships in Singapore and Malaysia on media building 
design. 

Dr. Vlcek has wniten extensively on instructional media and 
copyright and has been active in copyright discussions for the past 
twenty years. He serves as a copyright consultant, speaker and 
copyright workshop presenter extensively in the Pacific Northwest 
and nationally. 



ix 



Site License Information 



To facilitate the implementation of copyright policies in sclools, 
colleges and other institutions, this book is also available in IBM- 
compatible computer disk format.The software is menu-driven to sup- 
port major word processing programs so users can modify the manual to 
meet specific needs. Site license agreements for use of the electronic 
version are available to provide institutions the following rights: 



1. To make and distribute copies of the computer disk for use 
within the institution; 

2. To make and distribute paper copies from the computer disk 
for use within the institution; 

3. To install the program for use in a local area network within 
the institution; 



License Agreement Fee Structure 

School District, college, or universities with enrollments: 



, « J Available from: 

The Association for Educational Communications & Technology 
\ \* 1Q25 Vermont Avenue, NW, Suite 820 
. 1 ;*i Washington, DC 20005 



a. Under 5000 

b. 5001 - 10,000 

c. 10,001 plus 



$150 
$300 
$500 



f 



Part I: 



ADOPTABLE 
BOARD COPYRIGHT POLICY 

This copyright policy states the board's intention to 
observe the copyright law and establish procedures for managing 
copyright compliance. Every board member and administrator 
knows that law suits do occur. When they do, the institution, 
individual board members, and key administrators will probably 
be named in the suit. This policy places the burden of litigation 
where it belongs -on the individual(s) responsible for the illegal 
actions. If the board has a copyright policy in place, that is 
consistently supported by the administration, the institution, the 
board, and the administrators have an excellent chance to defend 
themselves and place the blame on the infringer(s). Failure to 
adopt and support a suitable copyright policy places the board in 
jeopardy if the institution is sued for copyright infringement due 
to the illegal actions of one employee. 




Adoptable Copyright Policy 



COPYRIGHT POLICY 
(Name of the Institution) 
(Address) 

This copyright policy was adopted by the (name of govern- 
ing body) on (date) after review by (name and title of counsel). 

1. It is the intent of the (name of governing body) that this 
(name of university, college, or school district) comply with the 
U.S. Copyright Law (Title 17, U.S. Code, Sect. 101, et seq.). This 
policy represents a sincere effort to observe the copyright law. 

2. Employees are prohibited from copying copyrighted 
works unless the action is authorized by (a) specific exemptions 
in the copyright law, (b) the principle of fair use, (c) the fair-use 
guidelines, or d) licenses or written permission from the 
copyright owner. Any other copying must be approved by the 
institution's Copyright Officer on a case-by-case basis. 

3. Employees are prohibited from "performing" 
copyrighted works unless the performance is authorized by (a) 
Title 17, U.S. Code, Sect. 110(1) (4) or (8), (b) performance 
licenses, (c) purchase order authorization, or (d) written permis- 
sion from the copyright owner or the owner's agent. 

4. The (title of the chief administrative officer) shall 
appoint a Copyright Officer who shall (a) implement this 
copyright policy, (b) prepare and distribute a Faculty Copyright 
Manual, (c) conduct training programs to assure that employees 
are aware of the copyright law, (d) answer questions about the 
copyright law, (e) maintain appropriate records of permissions, 
agreements, and licenses, (f) place appropriate copyright warn- 
ing notices on or near copying equipment, and (g) other related 
duties, as needed. 



Adoptable Board Copyright Policy 



5. Employees who willfully disregard the institution's 
Board Copyright Policy, or the specific provisions of the Faculty 
Copyright Manual, do so at their own risk and assume all liability, 
including the possibility of dismissal for persistent copyright 
infringements. 

6. If the Copyright Officer is aware of copyright 
infringements by an employee, he/she shall counsel the infringer. 
If the employee continues to infringe the copyright law, the 
Copyright Officer shall inform the (title of the chief administra- 
tive officer) of the continuing infringements. The (title of the 
chief administrative officer) shall take appropriate steps to stop 
the illegal actions. If the infringer refuses to stop the infringe- 
ments, the (title of the chief administrative officer) shall take 
appropriate steps to terminate the employment of the persistent 
infringer. 



Adopted by 

(name of governing body) 
(name of institution) 
(address) 
(date) 



Part II: 



ADOPT ABLE 
FACULTY COPYRIGHT MANUAL 

This Faculty Copyright Manual is a brief condensation of 
the law and the related legal documents. It is far too brief to 
completely encompass the law, but provides a brief summary of 
the points most likely to impact the faculty. 



Chapter 1: 



OVERVIEW 



The U.S. Constitution gave Congress the power "To 
promote the progress of science and useful arts by securing for 
limited time to authors and inventors the exclusive right to their 
respective writings and discoveries." 1 The authors of the Con- 
stitution recognized that if the works of creators were not 
protected, it would undermine the incentive to create, and the 
dissemination of knowledge would be greatly curtailed. Congress 
passed the first national copyright act in 1790. Over 200 years, 
the copyright law has been completely revised five times and 
amended many more times, sometimes annually. 

The last total revision of the copyright law passed in 1976 
and went into effect on January 1, 1978. 2 It incorporated several 
major changes, (i.e., it extended the duration of copyright protec- 
tion, expanded the scope of copyright, legislated a fair-use 
exemption, and addressed newer technologies). 

What Can Be Copyrighted: 

Copyright protection exists for all works created in any 
medium of expression as long as the works are fixed in a tangible 



7 

15 



Adoptable Copyright Policy 



medium of expression so they can be perceived or communicated 
with or without the aid of equipment. 3 These include: 

1. Literary works; 

2. Sheet music and musical performances; 

3. Dramatic works, including any accompanying music; 

4. Pantomimes and choreographic works; 

5. Pictorial, graphic, and sculpture works; 

6. Motion pictures and other audiovisual works; and 

7. Sound recordings. 4 

Exclusive Rights: 

The copyright law gives the copyright owner the exclusive 
right to do or to authorize the following: 

1. "To reproduce the copyrighted work." The copyright 
owner has the exclusive right to publish or to withhold a work in 
any media. • 

2. "To prepare derivative works based upon the 
copyrighted work." Only the copyright owner may change, alter, 
or translate a work, or convert it to a new medium, or create a 
new work from an existing work. 

3. "To distribute copies ... of the copyrighted work to the 
public by sale or other transfer of ownership, or by rental, lease, 
or lending." This exclusive right of "first publication" terminates 
with the "publication" of the work. Thereafter, the purchaser of 
a legitimate copy of a work may sell, lend, or dispose of the copy 
without the copyright owner's permission. 



8 

IS 



Faculty Copyright Manual-Overview 



4. "In the case of literary, musical, dramatic and 
choreographic works, pantomimes, and motion pictures ... [and] 
other audiovisual works, the copyright owner has an exclusive 
right to "perform" (i.e., show) the copyrighted work publicly; 
and" 

5. "In the case of literary, musical, dramatic and 
choreographic works, pantomimes and pictorial, graphic or 
sculptural works, including individual images of a motion picture 
or other audiovisual work, the copyright owner has an exclusive 
right to display the copyrighted work publicly." 5 

Copyright Registration: 

A work is automatically protected the moment it is created 
in a tangible medium of expression. However, this right cannot 
be enforced until the work is registered at the U.S. Copyright 
Office. To be eligible for copyright protection, works must be 
original and represent appreciable creativity. 6 Unpublished 
works may be registered anytime within the term of copyright 
protection. Copyright notices are not required on works publish- 
ed after March 1, 1989. 7 However, if a work is published after 
that date, one must assume it is copyrighted. Authors, artists, and 
producers are still urged to place a copyright notice on all crea- 
tive works, and to register their copyrights promptly to establish 
a public record of ownership. 

Duration of Copyright: 

Copyright protection under the 1909 law was twenty-eight 
years, renewable for another twenty-eight years, for a total of 
fifty-six years. Works created after January 1, 1978 are protected 
for the life of the author, plus fifty years. Protection for multi- 
authored works, extends to the life of the longest-lived author, 



9 

17 



Adoptable Copyright Policy 



plus fifty years. Anonymous and pseudonymous works and 
work made for hire are protected for seventy-five years from 
first publication. 10 For works in their second term of copyright 
registration under the 1909 law, the protection extends to 
seventy-five years from the date of publication or creation. 11 
For works in their first term of protection under the 1909 law, 
the registration is extended to seventy-five years by renewing 
the registration in the twenty-eighth year. 12 All copyrights ex- 
pire on December thirty-first of the last year of protection. 13 



Figure 1: Copyright Duration Table 



Date of 


End of 


End of Protection 


Creation or 


First-term 


if Registration 


Publication 


Protection 


was Renewed 




(28 Years) 


(75 Years) 


1910 


1938 


1985 


1920 


1948 


1995 


1930 


1958 


2005 


1940 


1968 


2015 


1950 


1978 


2025 



Works Made For Hire: 

Works "made for hire" are protected for seventy-five years 
from the year of creation or publication or one hundred years 
from the day the work was created, whichever comes first. 
These include works created by an employee as part of his or her 
job where the copyright is held by the employer. It also includes 
works made by independent contractors who transfer the 
copyright by means of employment contracts. Many universities, 
colleges and schools have service contracts which specify the 
assignment of copyright ownership and the division of royalties 



10 

IS 



Faculty Copyright Manual-Overview 



for works created by the faculty. These conn acts frequently only 
apply only to works created using institutional facilities or staff. 

Unpublished Works: 

Many works are never published but they are protected 
from the moment of creation. These works include diaries, cor- 
respondence, notes, sketches, photographs, recordings, Alms, 
videos, etc. They are fully protected without a copyright notice 
or copyright registration. Unpublished works created prior to 
January 1, 1978 are protected until December 31, 2002; those 
created after January 1, 1978 are protected for the life of the 
creator, plus fifty years. The creator of unpublished works has 
the same "right of first publication" as published works which 
gives him or her the control of the use of the work. Unpublished 
works may not be duplicated except for purposes of preservation, 
security, or deposit in another library for research. 5 

Public Domain: 

Copyrighted materials enter the public domain when 
copyright protection expires. Works published before January 1, 
1978 without a proper copyright notice entered the public 
domain immediately upon publication. Works remain in the 
public domain even when re-published in a new copyrighted 
work. Works which are in the public domain maybe used without 
permission. 

Works created by employees of the U.S. government while 
performing their official duties are in the public domain. 16 How- 
ever, some government works are protected if: 

(1) The copyright has been transferred to the government 
as a gift; 17 

(2) The work was created by a grantee who was permitted 
to claim a copyright in the work; 18 



Adoptable Copyright Policy 



(3) A privately-created copyrighted work is included in a 
government document. 19 

Performing Rights: 

One of the exclusive rights given to the copyright holder is 
the right to control performances of all copyrighted works. (This 
includes the right to control showing of audiovisual works.) Sec- 
tion 110(1) of the copyright law provides a limited exemption to 
that right. Teachers and pupils may perform (show) copyrighted 
works in the classroom. The exception requires that the perfor- 
mance be carried out by instructors or students in a nonprofit 
institution in a classroom or similar place of instruction (i.e., 
laboratory, auditorium, gymnasium, or library). The exemption 
only applies to performances in face-to-face instruction in a 
course given for academic credit. It does not cover performances 
for entertainment or recreational purposes as a part of lunch- 
hour, recess, or after-school activities. It also does not authorize 
performing works in common rooms of student housing. "Non- 
theatrical public performance licenses" are required to perform 
audiovisual works in those circumstances or locations. Perform- 
ing dramatic works requires an appropriate license from the 
playwrights' agent. 20 

Fair Use: 

While the copyright law gave authors the exclusive right to 
their works, the law also provides some limitations to those rights. 
The theory of fair use was developed by the courts as a "rule of 
reason" to assist in deciding court cases. This judicial "rule of 
reason" was incorporated in statutory copyright law by the 
Copyright Revision Act of 1976. (Full text in Appendix K, Sect. 
107.) The law offers four broad criteria for applying fair use. 

"1. The purpose and character of the use, including 
whether it is for commercial or nonprofit education purposes;" 




Faculty Copyright Manual-Overview 



This addresses the issue of how the material is used and by 
whom. Fair use has some application to reproducing copyrighted 
works for educational purposes, in nonprofit educational institu- 
tion. 

tf 2. The nature of the copyrighted work;" 

Fair-use guidelines have been developed for three groups 
of materials, (i.e., print materials, music, and television). The 
type of material must be considered and the appropriate fair use 
guidelines must be applied. Congress specified that certain types 
of materials should rarely be copied; they are identified later in 
this manual. 

"3. The amount and substantiality of the portion used in 
relation to the work as a whole;" 

Fair-use guidelines are available for copying parts of books 
and sheet music. For other materials the smaller the amount that 
is copied, the more likely it is that the action is a fair use. Copying 
up to ten percent of a work is usually considered safe, except 
when the parts copied are crucial to the whole material, or if they 
are rare or difficult to create. 

"4. The effect of the use on the potential market for or 
value of the work." 

Effect can be measured in competing and non-competing 

uses: 

Competing Uses: 

Uses that deprive the creator of a sale, lease or rental are 
probably not a fair use. (These include duplicating print, audio, 
and video materials instead of purchasing, renting, leasing, or 
licensing additional copies). 



13 

21 



Adoptable Copyright Policy 



Non-competing Uses: 

Non-competing uses do not adversely affect the copyright 
owner. For example, making two slides from a magazine for 
classroom use when the slides are not commercially available, 
duplicating materLiS which are not available for sale, rental, 
lease, or licensing, etc. may not affect the copyright owner. Fair 
use has greater application to non-competing uses, but repeated 
copying may still be illegal. 

Fair-Use Guidelines: 

Although the four fair-use criteria are written into the law, 
it is not always clear when they are met. Congress asked the 
Register of Copyrights to develop specific educational guidelines 
for interpreting the fair-use criteria. Three groups met to develop 
fair-use guidelines for duplicating (1) print materials, (2) sheet 
music, and (3) television programs. The guidelines were ratified 
by Congress as an expression of the "intent" of the legislature. 
The committees that wrote the guidelines included repre- 
sentatives of educators, authors, publishers, studios, and labor 
unions. While the guidelines were not endorsed by all the groups 
involved, they have been ratified by Congress and will be con- 
sidered in court cases involving infringements by educators. For 
this reason, they must be viewed as valid guidelines. The 
guidelines may change as the law evolves through court cases, 
but, at present, they seem to offer suitable direction to educators. 
The fair-use guidelines will be discussed later in the treatment of 
each type of material. 

Copyright Warning Notices: 

The law specifies that copyright warning notices shall be 
posted at the place where library or archives employees accept 
orders for copies. The text of the following notice is specified by 
federal regulation. 23 



14 

22 



Faculty Copyright Manual-Overview 



NOTICE 

Warning concerning copyright restrictions. The 
copyright Law Of The United States (Title 17, United States 
Code) governs the making of photocopies cr other reproduc- 
tions of copyrighted material. 

Under certain conditions specified in the law, libraries 
and archives are authorized to furnish a photocopy or other 
reproduction. One of these specified conditions is that the 
photocopy or reproduction is not to be used for any purpose 
other than private study, scholarship, or research. If a user 
makes a request for, or later uses a photocopy or reproduction 
for purposes in excess of fair use, that user may be liable for 
copyright infringement. 

This institution reserves the right to refuse to accept a 
copying order if, in its judgment, fulfillment of the order 
would involve violation of the law. 



A notice also must be displayed on or near all library or 
archival equipment capable of duplicating copyrighted materials 
and must be visible to anyone using the device. 22 Copying equip- 
ment includes photocopying machines, mimeograph machines, 
transparency markers, audio and video recorders, photographic 
copy stands, microfilm printers, and computers. It is desirable to 
place copyright warning notices at places where patrons borrow 
equipment for removal from the premises. Although the law only 
requires warning notices on equipment in libraries and archives, 
it is prudent to include them on or near all copying equipment 
used by faculty, staff, and students. The following notice is recom- 
mended by the American Library Association. 



* 23 



AdopCabk Copyright Policy 



NOTICE: The copyright law of the United States (Title 
17, U.S. Code) governs the making of copies of copyrighted 
materials. The person using this equipment is liable for any 
infringement. 



Libraries and archives also are required to place a 
copyright warning notice on the first page of copies they make 



NOTICE: This material may be protected by copyright 
law (Title 17, U.S. Code). 



for patrons. The notice recommended by the American Library 
Association reads: 25 

Penalties for Infringement: 

A copyright infringer can be liable for actual damages and 
profits; or for statutory damages, as determined by a court. 
Statutory damages range from $250 to $50,000 per infringement, 
depending upon the extent of the infringement. 26 (An amend- 
ment is being considered which will increase the penalties.) In 
addition, the infringer can be assessed for court costs and the 
plaintiffs attorney's fees. Court costs and attorney's fees fre- 
quently exceed the amount of damages and profits. When infrin- 
gements are made for profit, criminal charges and potential 
imprisonment may be added. 

Innocent Infringers: 

An innocent infringer is one who can convince a court that 
he or she did not know their actions were an infringement of the 
law. In these cases, the statutory damages can be lowered to not 
less thaji $100. 27 Any faculty member who received this Faculty 



16 



Faculty C pyright Manual-Overview 



Copyright Manual would have great difficulty proving he or she 
was an innocent infringer. 

Contributory Infringers: 

Contributory infringers are persons who have knowledge 
of infringing activities, but do nothing about it. A librarian, media 
coordinator, dean, or principal who knows about an infringe- 
ment, (e.g., television programs videotaped off the air which a* '« 
retained longer than permitted by the fair-use guidelines), and 
who does nothing about it, is a contributory infringer. He or she 
is likely to be named in litigation. When a copyright owner files 
a formal comphint against an institution for an infringement, 
those named in the complaint usually include the the members of 
the governing board, the chief executive officer, the infringer(s), 
and contributory infringers. 

Sovereign Immunity 

Under the Eleventh Amendment to the Constitution, tax- 
supported agencies were not liable for copyright infringements. 
The issue was tested when B.V. Engineering, a small firm, 
provided the University of California at Los Angeles with en- 
gineering software on a test basis. UCLA made copies and 
returned the original to B.V. Engineering without purchasing the 
software. In the resulting case. B.V. Engineering v. The University 
of California at Los Angeles, the Supreme Court held that the 
university was not liable because of the protection offered by the 
Eleventh Amendment. In a more recent case, Anderson v. Rad- 
ford University, the Supreme Court fcsii the university immune 
from liability, but Deborah Brown, a university employee, was 
not immune from liability for copyright impingements or viola- 
tions of contractual agreements. 2 

Congress closed the sovereign immunity loophole by pass- 
ing the Copyright Remedy Clarification Act on October 26, 



17 



Adoptable Copyright Policy 



1990. The Act permits tax-supported agencies and their 
employees to be sued for copyright infringements. The Eleventh 
Amendment, can no longer be i\*ed as a legal defense for 
copyright infringements by tax-supported agencies. 

REFERENCES 

l U.S. Constitution. Article 1, Section 8 

2 Title 17, U.S. Code. Hereafter cited as "Copyright Act." 

3 Copyright Act, Section 102(a) 

4 Copyright Act, Section 102(a) 

5 Copyright Act, Section 106(5) 

6 Copyright Act, Section 106 

^Copyright Basics, Circular 1, Washington D.C.: U.S. 
Government Printing Office, June 1989 

8 Copyright Act, Section 302(a) 

9 Copyright Act, Section 302(b) 

10 Copyright Act, Section 302(c) 

"Copyright Act, Section 304(b) 

12 Copyright Act, Section 304(b) 

13 Copyright Act, Section 305 

14 Copyright Act, Section 302(c) 

15 Copyright Act, Section 108(b) 



ERLC 



18 

2b 



Faculty Copyright Manual-Overview 



16 



Copyright Act, Section 105 
17 Ibid. 

l% House Report, No. 94-1476, 94th Congress, 2nd Session 
(1976), p. 59 

19 Ibid., p. 60 

20 Copyright Act, Section 110(1); and relevant passages in 
House and Senate Reports 

21 Copyright Act, Section 107 

22 Copyright Act, Section 108(d)(s) and (e)(2) 

^Federal Register (42 Fed. Reg. 59264), November 16, 
1977, pp 59264-5 

24< Three Words Added to Copyright Notice" American 
Libraries 9, No. 1 (January, 1978), p. 22 

"Warning Notices for Copies and Machines," American 
Libraries 8, No. 10 (November, 1977), p. 530 



26, 



27, 



28 



Copyright Act, Section 504(2) 
Copyright Act, Section 504(2) (c) 
B.V. Engineering v. The University of California at Los 



Angeles. U.S. Supreme Court (109SCt, 1557, 103LEd2d 859.) 



29 



Richard Anderson Photography v. Deborah Brown and 
Radford University. U.S. Spreme Court (109SCt 1171, 
103LEd2d),229. 



30, 



Copyright Remedy Clarification Act, Public Law 101- 



553, November 15, 1990. 



ERIC I 



19 



Chapter 2 



APPLYING THE LAW TO 
SPECIFIC MEDIA 

This chapter provides a brief synopsis of the law as it 
applies to commonly-used media. 

PRINT MATERIALS 

"Print materials" include books, periodicals, pamphlets, 
newspapers and similar items. This discussion is limited to copy- 
ing by or for the faculty, as student and library photocopying is 
treated elsewhere. The fair-use section of the copyright law 
authorizes individuals to copy a small part of a work. The fair- 
use section of the copyright law is interpreted by the "Agreement 
on Guidelines for Classroom Copying in Not for Profit Educa- 
tional Institutions with Respect to Books and Periodicals." It was 
developed at the request of Congress by representatives of the 
Authors League of America, the Association of American Pub- 
lishers, and the Ad Hoc Committee of Educational Institutions 
and Organizations on Copyright Law Revision. The guidelines 
apply to teaching and research in nonprofit educational institu- 



Adoptable Copyright Policy 



tions. The full text appears in Appendix A and is summarized as 
follows: 

1. Single Copying by Teachers: 

The following are minimum statements of fair use: 

A teacher may make a single copy of any of the following 
for his or her research, lesson preparation, or use in teaching: 

a. A chapter of a book; 

b. An article from a periodical or newspaper; 

c. A short story, short essay or short poem; 

d. A chart, graph, diagram, cartoon or picture from a 
book, periodical, or newspaper. More then one illustration can 
be copied if they are included in a chapter or article being copied. 

2. Multiple Copies for Classroom Use: 

The following are minimum statements of fair use: 

One copy can be made for each student in a class when the 
following conditions are met: 

a. Poetry: a complete poem if it is less than 250 words 
and printed on not more than two pages, or an excerpt of not 
more than 250 words. 

b. Prose: (1) a complete article, story or essay if it is 
less than 2,500 words, or (2) an excerpt not to exceed 1,000 wordu 
or ten percent of the work, whichever is less. When ten percent 
of the work is less than 500 words, a minimum of 500 words may 
be used. 



23 22 



Faculty Copyright Manual-Applying the Law 



c. Charts, graphs, diagrams, drawings, cartoons, and 
pictures: One chart, graph, diagram, drawing, cartoon or picture 
per book or per periodical issue if the individual item is not 
separately copyrighted. More than one of each may be copied if 
they are included and meet the criteria in 2(b)(2), above. 

d. Special works. These include children's picture 
books and comicbooks which combine illustrations with a limited 
text. These works usually have less than 2,500 words in their 
entirety. Copying these works is limited to two pages, on condi- 
tion that those two pages do not include more than ten percent 
of the words in the work. 

e. Each copy includes a copyright warning notice, pre- 
viously described. 

f. The copying must be at the request or inspiration of 
the individual teacher. 

g. The inspiration to use a material and the time when 
needed for use does not allow purchasing or seeking permission. 
This requirement disallows repeated use at a later date. 

h. The copies are to be used only in one course in the 
school. A "course" appears to include multi-section courses 
taught by the same or different teachers as one course using a 
uniform text and lesson plan. In colleges and universities, a 
course ends at the conclusion of each academic term. In elemen- 
tary and secondary schools, it usually stops at the end of a grading 
period. 

i. Not more than one poem, article, story, essay or two 
excerpts may be copied from one author, or more then three from 
a work or periodical volume (as opposed to an issue) during one 
class term. 



23 30 



Adoptable Copyright Policy 



j. Not more than nine items from all sources may be 
multiple copied for one course during one class term. This 
restriction does not apply to current news periodicals and public 
domain materials. 

3. Prohibitions to 1 and 2, above: 

a. Copying may not be used to create anthologies, com- 
pilations or collective works. 

b. "Consumable works" (i.e., workbooks, exercises, test 
booklets, etc.) may not be copied. 

c. Copying shall not (1) substitute for purchases, (2) be 
directed by higher authority, or (3) be repeated by the same 
teacher without permission from the copyright owner. 

d. The copies shall be distributed free, or the copying 
charges shall be limited to the actual cost of copying. 

Copying by a Library or Archives: 

Section 108 of the copyright act gives nonprofit libraries 
and archives considerable latitude in what they can copy. This 
copying is separate from fair-use copying, treated earlier. The 
copyright law, permits libraries and archives to make single 
copies for patrons without permission and multiple copies for 
patrons when certain conditions are met. The law also authorizes 
duplicating certain non-print materials. 

Libraries and archives must meet certain basic require- 
ments to employ this exception: 

1. All copies must be made without direct or indirect 
commercial advantage; 



24 

31 



Faculty Copyright Manual-Applying the Law 



2. The collections of the library or archives must be open 
to the public. In the case of limited-access research libraries, the 
collection must be open to qualified researchers regardless of 
their occupational or professional affiliation; 

3. All photocopies must display a copyright warning 
notice on the first page of the photocopy. (Sec Copyright Warn- 
ing Notices in Chapter 1.); 

4. All copies must become the property of the patron; 

5. The library or archives must not be aware that a copy 
made for a patron will be used for any purpose other than private 
study, scholarship, or research; and 

6. The library or archives must display a copyright warning 
notice at the place where it accepts orders for copies, and on its 
interlibrary loan request forms (See Copyright Warning Notices 
in Chapter l). 2 

Copying for Patrons: 

A library meeting the above conditions may copy: 

1. A single journal article or a small part of a book, or 
other copyrighted work. 

2. A library or archives may reproduce for a patron an 
entire copyrighted work, or a substantial part of it, if the library 
determined, after a reasonable investigation, that a new or used 
copy cannot be obtained at a fair price. 3 

The library photocopying section of the law does not 
extend to musical, pictorial, graphic or sculptural works except 
for illustrations appearing in a book or periodical which may be 
copied as a part of the article or section being copied. 4 Fair use 
permits copying some of these works by a library or archives if 



25 



32 



Adoptable Copyright Policy 



the user requests the copy for legitimate scholarship, research, 
or teaching purposes (See Fair Use in Chapter 1). 

Section 108 allows a library or archives to record, dupli- 
cate, retain and lend a limited number of copies and excerpts of 
television news programs. News programs include actual news 
reports but exclude news analysis and news-magazine programs. 
No other audiovisual materials may be copied under the library 
photocopying section of the law. News programs copied under 
this provision may only be used in research and not in teaching. 5 

Copying for its own collection or for the collections of 
another library or archives; libraries and archives may reproduce 
one copy of a work for their own collections or for those of 
another library or archives under the following conditions: 

1. A library or archives may reproduce in facsimile form 
(e.g., photocopy or microform) any unpublished work currently 
in its collection. The copy must be made for the preservation and 
security of the original or for deposit for research use in another 
library or archives. 6 

2. A library may make a replacement copy of a published 
work in its own collection if the original is damaged, deteriorated, 
lost, or stolen. (Copies may not be made in anticipation that they 
may be "damaged, deteriorated, lost, or stolen.") The copy can 
be made from a work in its own collection or from a copy in 
another library or archives. Before making the copy, the library 
or archives must make a reasonable effort to find an unused 
replacement copy at a fair price. 7 

Interlibrary Loans: 

Libraries may make copies of materials for sharing with 
other libraries through interlibrary loan. 8 Interlibrary loan copy- 
ing is governed by guidelines developed by the National Commis- 



26 



Faculty Copyright Manual-Applying the Law 



sion on New Technological Uses of Copyright Works (CONTU). 
The complete text appears in Appendix E and is summarized 
here: 

1. A library may request no more than Ave copies of 
articles from a periodical volume (not an issue) per year. How- 
ever, this limitation does not apply to articles published five or 
more years before the date of the request. 

2. A library or archives may request no more than five 
excerpts from a book or pamphlet while it is subject to copyright 
protection. (See the table of copyright expiration dates on page 
14.) 

3. The above limitations do not apply, if: 

a. The library has ordered a subscription to the peri- 
odical, or 

b. The library owns the work but the copy is lost, stolen, 
or otherwise unavailable when the reproduction is requested, or 

c. The library has ordered the title, but it has not 

arrived. 

Under any of these circumstances, the requesting library 
or archives may request a copy through interlibrary loan as a fair 
use, but the request does not count as one of the five copies 
authorized by the CONTU guidelines. 

4. Interlibrary loan requests must state that the request 
conforms with the CONTU guidelines or other provisions of the 
copyright law. Copies made under item 3, above, fall under the 
"other provisions" section of the guidelines. 




Adoptable Copyright Policy 



5. The requesting library must maintain records of filled 
orders. The records must be retained for three years after the end 
of the calendar year. 9 

Library Reserve: 

Single or multiple copies of periodical articles and chap- 
ters of books may be placed on reserve in a library under the 
terms of Section 107, on fair use. 10 A single copy may be the 
faculty member's single, fair-use copy. Multiple copies may be 
placed on reserve in lieu of distributing multiple copies of the 
item to students in the class. The amount of copying under this 
exemption must be restricted to the number of items that may be 
distributed to a class during a term. Copies mads under this 
provision only may be used for the semester in which they were 
placed on reserve. Any further use of the copies requires the 
permission of the copyright owner. The number of copies placed 
on reserve must be limited to a "reasonable** number. This ob- 
viously depends upon the size of the class; one copy per ten 
students may be "reasonable," but the American Library 
Association (ALA) and American Association of Law Librarians 
(AALL) suggest a limit of six copies, regardless of the number 
enrolled. 11 

In summary, copying material for reserve purposes should 
meet the following conditions: 

1. The faculty member's single, fair-use copy, or 

2. Multiple copies placed on reserve which conform to the 
limits in the "Agreement on Guidelines for Classroom Copy- 
ing...." The quantity placed on reserve shall be "reasonable" in 
relation to the number of students in the class. 



35 



28 



Faculty Copyright Manual-Applying the Law 



3. The copy(s) on reserve shall be identified as belonging 
to a faculty member and include a copyright notice or a copyright 
warning notice, or both. 

4. Copying the material shall not adversely effect the 
market for the work. 

5. Photocopied material may not be revised in subsequent 
semesters without the copyright owner's permission. 



MUSIC 

Separate copyrights usually exist for sheet music and 
recorded musical performance. Additional copyrights may exist 
in the lyrics. Composers, lyricists, arrangers, performers, etc. 
receive royalties from the sale of their creative works. Music 
dealers usually sell sheet music in sets (e.g., band sets, chorus 
sets, etc.). Single copies may not be available from dealers but 
can be ordered directly from the publisher. Copying sheet music 
without permission deprives the composers of royalties. Copying 
recordings deprives composers, arrangers, performers, etc. of 
their royalties. Fair-use guidelines for music were developed by 
the Music Publishers' Association, the National Music Publish- 
ers' Association, the Music Educators' National Conference, the 
National Association of Schools of Music, and the Ad Hoc Com- 
mittee on Copyright Law Revision. The guidelines authorize 
limited copying and altering of sheet music. They also authorize 
recording student performances. The guidelines appear in 
Appendix B and are summarized here: 




Adoptable Copyright Policy 



Fair-Use Guidelines for Music: 

1. Copying Sheet Music: 

A. Emergency copies maybe made to replace lost music 
when time does not permit purchasing replacement music before 
a performance. The emergency copies must be destroyed at the 
end of the performance and replaced with purchased copies. 

B. For teaching purposes, not performance, multiple 
copies of excerpts may be made provided that the excerpts do not 
constitute a performable unit such as a section, movement, or 
aria. The excerpt may not be larger than ten percent of the whole 
work and not more then one copy per pupil may be made. 

C. For teaching purposes, not for a performance, a 
single copy of an entire performable unit (section, movement, 
aria, etc.) that is confirmed by the copyright proprietor to be out 
of print or unavailable except in a larger work, may be made for 
a teacher for his or her scholarly research or preparation to teach 
a class. 

D. Purchased sheet music may be edited or simplified 
if the fundamental character of the work is not distorted. Lyrics 
may not be altered or added if none exist. 12 

2. Musical Recordings: 

A. Student performances may be recorded for evalua- 
tion purposes only. The recording may be retained by the institu- 
tion or the teacher. 

B. At one point, the committee included a provision 
authorizing educators to reproduce sound recordings owned by 
an education institution or an individual teacher for the purpose 
of constructing aural learnin^ exercises or examinations. This 
provision was withdrawn just before the guidelines were 



3"M 30 
/ 



Faculty Copyright Manual-Applying the Law 



approved by* Congress. Transfers from disk to tape or disk to 
cassette always require permission. 

3. Performances: 

A. As discussed above, the fair-use guidelines allow 
student performance to be recorded if the recordings are made 
only for critique or evaluation. That same privilege does not 
extend to recording performances by professional musicians 
from outside the institution without the permission of the per- 
former and the copyright owner of the music. Licenses must be 
obtained for all public performances, unless they fall under the 
"free and benefit" provisions discussed below. 

B. Live public performances of non-theatrical musical 
works are authorized under the "free and benefit" performance 
provision in Section 110(4) of the copyright law. (Full text in 
Appendix Sect. 110.) The performance must be given without 
charge to tl^e audience, or the income from admission fees in 
excess of costs must be applied to a charitable cause. In either 
case, the managers and performers must contribute their services 
or their contribution to the performance must be part of their 
overall duties as faculty members or staff membeis. This 
appears to authorize musical performances at school athletic 
events, if the proceeds over costs are applied to a charitable 
cause, such-as.a scholarship fund. In practice, most colleges and 
universities purchase performance licenses from the three major 
musical licensing agencies listed in Appendix J. These licenses 
cover all student performances of non-dramatic musical works. 
As a result of an "understanding" between the attorney for a 
major educational association and the licensing agencies, the 
agencies do not sell licenses to school districts. 

C. Recorded music may not be performed at social 
occasions without a license from the licensing agencies listed in 
Appendix J. 



31 

05 



Adoptable Copyright Policy 



4. Copying Records: 

Copyrighted musical recordings may not be copied without 
permission. Such permission is rarely granted, so educators have 
little choice except to purchase additional quantities of the 
recordings. 

5. Musical Transmissions and Broadcasts: 

Live or recorded music may not be transmitted through a 
multi-rcom public-address system or cable system without a 
license. Live or recorded music may not be broadcast unless the 
station holds licenses from the three music licensing services 
listed in Appendix J. 

TELEVISION PROGRAMS 

1. Off-air and Cable Receptions: 

Television broadcasts and cable transmissions may be 
received and simultaneously shown to classes. 

2. Recording Commercial Television Programs at School: 

Commercial television programs for classroom use fall 
under the terms of guidelines. Guidelines were developed by 
representatives of educational organizations, copyright 
proprietors and creative guilds (unions). While some proprietors 
disagree with the guidelines, the guidelines will impact any litiga- 
tion involving videotaping off the air for classroom use. The text 
of the guidelines appears in Appendix C and are summarized 
here: 



32 



coir 



Faculty Copyright Manual-Applying the Law 



A. The guidelines only apply to off-air recording by 
nonprofit educational organizations. 

B. Programs may be recorded from broadcast transmis- 
sions or from a simultaneous retransmission by cable distribution 
systems. 

C. Programs must be transmitted to the general public 
without charge. This eliminates "pay" programming, (i.e., HBO, 
CineMax, Disney Channel, etc.). 

D. Programs may be retained for forty-five calendar 
days from date of recording. After forty-five days they must be 
erased or permission must be obtained for continued retention 
and use. 

E. Programs may be shown to a class once, and repeated 
once for reinforcement, during the first ten "teaching days* fol- 
lowing the broadcast. A "teaching day" is a day on which pupils 
receive instruction. It excludes holidays, weekends, examination 
periods and other non-teaching days. 

F. Off-air recordings may be made by the teacher or by 
a media specialist or librarian at the request of a teacher. 
Programs may not be re-recorded by or for the same teacher 
when they are rebroadcast. 

G. Programs may not be recorded in anticipation of 
teacher requests. 

H. Off-air recordings need not be used in their entirety 
but they may not be altered from their original content, or 
electronically combined or merged. 

I. All copies of off-air recordings must include the 
copyright notice, if one appeared in the program. 



Adoptable Copyright Policy 



J. Educational institutions arc expected to establish 
appropriate control procedures. 14 An appropriate form appears 
in Appendix I. 

3. Recording Commercial Television Programs at Home 
for Classroom Use: 

There has been some concern about recording j rograms 
in the teachers* homes and using the recordings in classrooms. 
The Sony Betamax case established that recording in the home 
for the use of the family and its friends was permissible. It did not 
address the issue of teachers or students bringing the recorded 
programs to school for classroom viewing. There is a general 
consensus that bringing programs recorded at home to school for 
classroom viewing is permissible if the recording and performan- 
ces comply with the "Guidelines for Off-Air Recording of Broad- 
cast Programming for Educational Purposes," It also should be 
emphasized that using programs beyond the ten "teaching day* 
limit is a copyright infringement. 

4. Recording Television Programs Off the Satellite: 

Satellite programming is protected by the Federal Com- 
munications Act* 15 Basically, programming may not be received 
without a license or written permission. The fair-use exemptions 
in the copyright law does not apply, as satellite transmissions are 
private communications protected by the Federal Communica- 
tions Act. A recent amendment to the Federal Communications 
Act authorizes "private viewing* in the home, if: 

A. The programming is listed as "free* in a reputable 
satellite programming directory. 

B. The programs are not scrambled or a subscription 
service has not been established. 16 



34 



Faculty Copyright Manual-Applying the Law 



This exemption applies only to viewing in the home and 
does not apply to educational receptions. An increasing number 
of educational satellite programs are now available, (i.e., the 
Learning Channel, International University Consortium, Nation- 
al Technological University, PBS Adult Learning Satellite Ser- 
vice, etc.). These programs are offered through membership or 
by contract. Reception without a license or membership is illegal. 

5. Recording Public Broadcasting Service (PBS) 
Programs: 

Most PBS series are produced by a consortium of stations 
that underwrite the series and a producer who produces and 
distributes the series. The agreement between the stations and 
the producer frequently includes a provision authorizing the 
viewers of the underwriting stations to record and reuse the 
programs. The terms of these agreements vary widely and many 
European producers and distributors do not grant educational 
duplication rights. Since these rights vary from station to station, 
contact your local PBS station(s) for duplication rights. 

6. Cable Transmission of Audiovisual Works: 

Cable "transmission" of copyrighted works is limited to 
non-dramatic literary works. 17 Because audiovisual works are 
excluded from the definition of literary works, audiovisual works 
may not be transmitted without a license. 18 Many video dis- 
tributors give free, in-building transmission licenses, but sell 
licenses for multi-building transmissions. Licenses are available 
from mo ,c educational video distributors and the prices are often 
negotiable. Cable transmission rights can and should be specified 
in institutional purchase orders for audiovisual materials so the 
transmission right is acquired simultaneously with the purchase 
of the programs. 19 

7. Home-Use-Only and Rental-Store Videos: 



35 

42 



Adoptable Copyright Policy 



Questions have been raised about the legality of classroom 
showings of videos labeled "For Home Use Only." Videos are 
sold with and without "nontheatrical-public-performance 
rights." Those sold with the rights usually cost more because of 
the additional value conveyed in the sale. Videos rented or sold 
at neighborhood video stores or sold through mail-order catalogs 
are offered without performance rights, so they are labeled "For 
Home Use Only," or something similar. Since they are sold 
without a performance license they are intended for private view- 
ing in homes limited to family and friends. These videos are 
usually much cheaper than videos sold with a performance 
license. Some educational media distributors sell their products 
with or without "nontheatrical-public-performance rights." 
Other firms only sell films and videos without licenses. 

One trade association operates a public relations cam- 
paign to persuade educators that it is illegal to show "For Home 
Use Only" videos in classrooms. However, Section 110(1) of the 
copyright law states explicitly that any legitimately-made, 
copyrighted work maybe performed or displayed by "instructors 
or pupils," in "face to face teaching activities," in "nonprofit 
educational institutions," in "classrooms or similar places 
devoted to teaching." Outside of that trade association, there is 
a general consensus that Section 110(1) allows showing videocas- 
settes labeled "For Home Use Only" in classrooms when the 
following conditions are met: 

A. They must be shown only to teachers and students in 
face-to-face instruction, 

B. They must be shown only in courses given for 
academic credit, 

C. They must be shown only in classrooms or other 
locations devoted to instruction (e.g. laboratories, gymnasiums, 
libraries, etc.), and 



36 

43 



Faculty Copyright Manual-Applying the Law 



D. They must be legitimately-made copies. 

Videocassettes labeled "For Home Use Only" may not be 
shown under the following circumstances: 

A. Showings during entertainment or recreation 
activities (e.g. recess, lunch-hour, and after-school showings), 

B. Showings to an audience which is not confined to the 
students and faculty assigned to a specific course, (e.g., showings 
at parents' programs, residence-hall social gathering, or com- 
munity activities), and 

20 

C. Showings from illegally-made copies. 

COMPUTER SOFTWARE 

The 1976 copyright law was deliberately vague about 
copyright protection for computer software until a congressional 
committee could complete a study. The law was amended on 
December 12, 1980, following the receipt of the committee 
report. The amendment defines computer software as a literary 
work, which gives software copyright protection immediately 
upon creation. The amendment also permitted making one 
archival or back-up copy of each program. 21 The International 
Council for Computers in Education (ICCE) issues a "Suggested 
Policy Statement on Duplicating and Using Computer Software 
in Academic Settings. n The latest edition of that statement 
appears in Appendix D and is summarized here: 

Back-up Copy: 

The Copyright Act allows the purchaser of software to: 

1. Make one copy of software for archival purposes in case 
the original is destroyed or damaged through mechanical failure 



37 

44 



Adoptable Copyright Policy 



of a computer. However, if the original is sold or given away, the 
archival copy must be destroyed. 

2. Make necessary adaptations to use the program. 

3. Add features to the program for specific applications. 
These improvements may not be sold or given away without the 
copyright owner's permission. 

Computer Laboratories: 

In computer laboratories where students and teachers 
have access to software, the institution should establish proce- 
dures that prevent illegal copying of software. Appropriate warn- 
ing notices should be posted at the supervisor's desk or the 
sign-in station. A suggested warning notice follows: 



SOFTWARE COPYING WARNING 

Software is protected by the copyright law and may not 
be copied without the copyright owner's permission. You are 
liable for damages resulting from illegal duplication of 
software. 



A short warning notice also should appear on all sign-in or 
check-out forms. (The form appears on the following page.) 

Multiple Loading: 

It is convenient to load one program disk into several 
computers for simultaneous use of the program. It is unclear if 
this is legal, but the ICCE Software Guidelines suggest that this 
should not be allowed. Licenses authorizing multiple loading are 
available from some publishers. 




Faculty Copyright Manual-Applying the Law 



COMPUTER USER AGREEMENT FORM 

As a condition of using the institutions computer equip- 
ment, I agree not to use the equipment to duplicate 
copyrighted software, whether it is my personal copy or is 
owned by the institution. I assume liability for any copyright 
infringements caused by me. 



Signed: Date: 



Networks: 

Many educational institutions have local-area networks 
(LAN) or wide-area networks (WAN) which enable large com- 
puters to serve many smaller computers or terminals within the 
institution. Licenses are required to use software on networks. 

Database Downloading: 

Downloading involves copying a data transmission from 
database utility to a user's computer. This shortens the "connect 
time, n which is the basis for most user fees. It also enables the 
searcher to clean up the data before printing a copy. Databases 
are copyrightable and copying from a database to a computer 
appears to be a copyright infringement. The copyright owners 
generally accept temporary downloading as a fair use as long as 
only one report is printed and the data is erased after printing 
the report. The problem centers on long-term retention of data 
to reuse or to combine to create a local database. Long-term 
retention for any purpose requires a downloading license. These 
licenses are offered by most database utilities. 23 



39 



46 



Adoptablc Copyright Policy 



OTHER ISSUES 

Films and Videotapes: 

Films and videotapes may not be copied or altered unless 
the copying meets the four tests for fair use. While no guidelines 
have been developed, copying a small part of a film or videotape 
may be permissible, if the four fair-use criteria are met. 
Producers argue that some parts of a program are critical to the 
total program and copying even a small part violates the "sub- 
stantiality" test in the second fair-use criterion. The courts have 
not established the validity of that argument or the amount of 
copying required to be "substantial," so caution is recommended. 

Copying or altering an entire film or video without written 
permission is clearly an infringement, unless it can be docu- 
mented that the copy was made to preserve an old program that 
is no longer available. Copying "preview" prints for any reason is 
a conspicuous copyright infringement. 

Filmstrips and Slide Sets: 

Copying filmstrips and slide sets in their entirety, or alter- 
ing a program, requires written permission. Transferring a pro- 
gram to another format, (i.e., filmstrip to video, or filmstrip to 
slides) also requires permission. Copying a few frames or slides 
may be a fair use, if the four fair-use criteria are met. 

Microforms: 

Microforms (microfilms, microfiche, etc.) are protected 
under the copyright act. The rules governing microforms are 
determined by the nature of the work contained therein, (i.e., a 
literary work, graphic work, etc.). Microform copies o? old books, 
periodicals, and manuscripts maybe copied freely if the original 
works are in the public domain. If the original publication is 



40 

47 



Faculty Copyright Manual-Applying the Law 



copyrighted, copies may be made using the rules that apply to 
books and periodicals. 

Newsletters: 

Newsletters are unique because they are very brief and 
have a small circulation. Therefore, almost any copying deprives 
the publisher of a sale or subscription. limited copying is pos- 
sible under the "small part" exemption in the library photocopy- 
ing or fair-use sections of the law. However, a small part of a 
four-page newsletter may consist of onl" a few lines of text. 
Copying newsletters must be approached with great caution. 

Artworks: 

Artworks are copyrightable. The duplication of such 
works, in their entirety by photography, sketching, rendering, 
casting, or printing *:e violations of the copyright law. The only 
exception is for copying illustrations in a book or periodical 
under the terms of "Agreement on Guidelines for Classroom 
Copying" or the library photocopying section of the law. 

Electrocopying (Computer Scanning): 

Electrocopying is the process of entering books, peri- 
odicals, artworks, etc. into a computer by means of an optical 
scanner. Once a work is entered in the computer, it can be edited, 
manipulated, and reproduced. Electrocopying a text may be a fair 
use if it is used only for research, (e.g., for textual analysis). Any 
other electrocopying of copyrighted texts requires the permission 
of the copyright owner. Artworks should not be electrocopied 
without permission, unless they are in the public domain. 
Electrocopying by students as a "learning exrcise" may be per- 
missible but the copies should be promptly erased. 



41 

48 



Adoptable Copyright Policy 



Dramatic Works: 

The right of the copyright owner to perform a dramatic 
work publicly, precludes all public performance of a play, opera, 
operetta, or musical comedy without a license. 24 Dramatic works 
may be performed in the classroom under the Section 110(1) 
exception, but all the requirements of that exception must be met, 
including the requirement that attendance be limited to the 
teacher and the pupils enrolled in the course. 25 

Student Projects: 

While the law does not specifically address student uses of 
copyrighted works, the Senate Report accompanying the 
Copyright Revision Act of 1976 identifies "special uses" by stu- 
dents: 

There are certain classroom uses which, because 
of their special nature, would not be considered an 
infringement in the ordinary case. For example, copying 
of extracts by pupils as exercises in a shorthand or typing 
class or for foreign language study . . . likewise, a single 
reproduction of excerpts from a copyrighted work by a 
student calligrapher .... in a learning situation would be 
a fair use of the copyrighted work. 

Based upon that statement, a consensus has developed that 
students may copy copyrighted works as a learning exercise. This 
suggests that students can integrate all types of materials into 
sound/slide, film, or television productions. Programs made 
under this exemption may be submitted to the teacher for a grade, 
and may be shown to the other students in the class. However, 
the paper or product must remain the property of the student. 
Copies may not be retained by the teacher or the institution, it 
may not be shown, transmitted, or broadcast outside the class- 
room, and no copies may be sold or given away. Students who 




42 



Faculty Copyright Manual- Applying the Law 



wish to make copies beyond these narrow constraints, or who 
wish to make additional uses of their student projects must use 
the permission procedures identified in Chapter 5. (See also Part 
III, the Student Copyright Manual.) 

REFERENCES 

1 Composed of representatives from forty-one educational 
and professional organizations 

2 Copyright Act, Section 108 

3 Copyright Act, Section 108(e) 

4 Copyright Act, Section 108(h) 

5 Copyright Act, Section 108(f)(3) 

6 Copyright Act, Section 108(b) 

7 Copyright Act, Section 108(c) 

8 Copyright Act, Section 108(g)(2) 

'"Guidelines for the Proviso of Subsection 108(g)(2)," 
Section 1(a) in House of Representatives Report No. 94-1476, 
Section 108 

^Report of the Register of Copyrights: Library Reproduction 
of Copyrighted Works. (17 U.S.C. 108) Washington D.C.: U.S. 
Government Printing Office, January 1983, p. 110 

n Heller, J. and S.K. Wiant, Copyright Handbook, (AALL 
Publications Series), Littleton, CO: Fred B. ftothman Company, 
1984, p. 28 



43 50 



Adoptable Copyright Policy 



12 The full text of the guidelines appear in Appendix B. 

13 Copyright Act, Section 110(4) 

14 Full text of the guidelines is in Appendix C. 

15 Title 47, US. Code 

16 Title 47, U.S. Code, Section 605 

17 Copyright Act, Section 110(2) 

18 Copyright Act, Section 101 

19 For an interesting approach to obtaining licenses or per- 
missions, see Mary Jo James, "Three Permission Surveys," in 
Jerome K. Miller and Others, Video Copyright Permissions: A 
Guide to Securing Permission to Retain, Perform, and Transmit 
Television Programs Videotaped Off The Air , (Friday Harbor, W A: 
Copyright Information Services, 1989), p. 73 

20 Copyright Act, Section 119(1) 

21 Copyright Act, Section 117, as amended by Public Law 
96-517, December 2, 1980 

22 Full text of the ICC document appears in Appendix D 

23 Baumgarten, J. "Copyright and Computer Software 
Including Databases and Chip Technology," In M. Goldberg (ed), 
Computer Software 1984: Protection and Marketing, (New York: 
Practicing Law Institute, 1984), Vol I, p. 66 

24 Copyright Act, Section 106(4) 
^Copyright Law, Section 110(1) 



26 



U.S. Senate, Report 94-473, Section 107, p. 63 
44 

51 



Chapter 3 



COPYRIGHT MANAGEMENT 



If a copyright policy is to be effective, someone must 
manage the details and provide staff training. This is the duty of 
the Copyright Officer. 

Copyright Officer: 

The copyright officer is not a police officer, but is an 
information provider and a coordinator of copyright transac- 
tions. He or she should be a helper, not a threat. The faculty and 
staff should be encouraged to consult the copyright officer about 
all copyright matters. (The letter appointing a copyright officer 
appears in Appendix F; an announcement of the appointment 
appears in Appendix G.) 

The copyright officer's responsibilities are: 

1. Implement the Board Copyright Policy, 

2. Establish and implement procedures to assure the 
institution and its employees comply with the copyright law, 



45 52 

9 



Adoptable Copyright Policy 



3. Prepare and distribute a Faculty Copyright Manual, 

4. Conduct training programs to inform the faculty about 
the copyright law and the institution's copyright policy, 

5. Answer employees' questions about the copyright law, 

6. Post appropriate copyright warning notices on copying 
equipment, 

7. Stay abreast of new developments in the copyright law, 

8. Negotiate licenses to copy, perform, or modify 
copyrighted works, and 

9. Maintain records of permissions, licenses, etc. 
Copyright Supervisors: 

While compliance with the copyright institutional policy 
requires the cooperation of all employees, the copyright officer 
must be assisted by knowledgeable people in key positions. They 
include the directors of the library, media center, computer cen- 
ter, reprographics center, print shop, and media production 
facilities. These people frequently deal with requests for services 
and materials that involve copyrighted materials. These directors 
are expected to make copyright decisions on a daily basis. For 
this reason, they must learn about the areas of the copyright law 
that pertain to their responsibilities. They must work closely with 
the copyright officer to be sure the copyright law and the 
institution's Copyright Policy are observed. 



46 



Chapter 4: 



COPYRIGHT QUICK GUIDE 

The following "quick guide" is a brief summary of the 
copyright law for the faculty. It cannot substitute for a careful 
reading of the entire Faculty Copyright Manual. It is suggested 
that this be printed separately and distributed to the faculty as a 
pocket-sized, quick-reference tool. Footnotes have been omitted 
to keep it as brief as possible. The sources are cited elsewhere in 
this book. 

I. Classroom Showing of Media Materials: 

Films, videos, filmstrips, etc., whether purchased, rented 
or leased, may be shown in classrooms as part of the established 
curriculum. They may not be shown for recreational or entertain- 
ment without a "nontheatrical-public-performance license." 



54 

47 



Adoptable Copyright Policy 



IL Duplicating Print Materials for Classroom Use: 
A. An individual educator may make: 
1. Single copies of: 



a. 


chapter of a book, 


b. 


an article from a magazine or newspaper, 


c. 


a short story, short essay, or short poem, or 


d. 


a chart, graph, diagram, drawing, cartoon or 




a picture from a book, magazine or 




newspaper. 


Multiple copies for classroom use (not to exceed 


one copy per student per course): 


a. 


a complete poem of less than 250 words, 


b. 


an excerpt, not to exceed 250 words, from a 




longer poem, 



c. a complete article, story or essay of less than 
2,500 words, 



d. an excerpt from a larger printed work not to 
exceed ten percent of the whole or 1,000 
words, 

e. one chart, graph, diagram, cartoon or picture 
per book or magazine issue if the individual 
item is not separately copyrighted, or 

f . two pages or ten percent of the words from 
children's picture books or comic books. 



48 



Copyright Quick Guide 



3. AH copies must include an appropriate copyright 
warning notice. 

4. Copying must be made by the teacher or at the 
request of the teacher— not at the direction of 
higher authority. 

B. An individual educator may not: 

1. Copy more than one work or two excerpts from a 
single author during one class term, 

2. Copy more than three works from a collective 
work or periodical volume during one class term, 

3. Make multiple copies of more than nine works for 
distribution to students in one class term, 

4. Use photocopies to create, replace, or substitute 
for an anthology, 

5. Copy "consumable" works such as workbooks, 
standard tests, answer sheets, etc., or 

6. Copy the same work from term to term without 
permission. 

III. Library Reserve: 

In lieu of classroom distribution, a reasonable number of 
copies may be placed on reserve for one semester. The number 
of copies depends on the size of the class, possibly one copy per 
ten students. Repeated use of a given material requires written 
permission. 



49 56 



Adoptable Copyright Policy 



IV. Music Copying: 
A* Sheet Music: 

1. An educator may: 

a. make an emergency copy for an imminent 
student performance, if the original copy was 
lost and there is not enough time io order a 
replacement copy. The temporary copy must 
be destroyed promptly after the performance, 

b. make multiple copies (up to one per student) 
of excerpts not constituting an entire perform- 
ance unit or more than ten percent of the 
total work for academic purposes other than 
performance, 

c. edit or simplify purchased sheet music pro- 
vided the character of the work is not dis- 
torted or lyrics added or altered, or 

d. duplicate individual parts if they are out of 
print or unavailable except in complete 
works and are used for teaching purposes. 

2. An educator may not: 

a. copy to substitute for an anthology or 
collection, 

b. copy from works intended to be 
"consumable," 

c. copy for purposes of performance except for 
emergency copies to replace a lost copy 
(item IV.A.l.a above), 

50 



Copyright Quick Guide 



d. copy to substitute for purchase of music, or 

e. copy without including the copyright notice. 
B. Recordings: 

1. An educator may make a single recording of 
student performances. The recording may be 
retained by the institution or the teacher 

for evaluation purposes only. 

2. An educator may not reproduce musical 
recordings or convert them to another format 
(e.g., record to tape, tape to cassette, etc.) 
without written permission. 

Recording Television Programs: 

A. Recording Off the Air or Off the Cable: 

1. The guidelines only apply to nonprofit institutions, 

2. Television programs may be recorded from broad- 
cast or simultaneous cable transmissions to the 
"general public," which excludes premium-pay 
programs, (e.g., HBO, CineMax, Disney, etc.), 

3. Programs may be shown once and repeated once 
for reinforcement within ten "teaching days" of 
the broadcast. They may be retained for forty-five 
calendar days from the date of the broadcast, 

4. Recording must be made by the teacher or at the 
request of the teacher, 

5. Programs may not be rerecorded at a later date, 
regardless of the number of times it is rebroadcast, 



51 



Adoptable Copyright Policy 



6. A limited number of copies may be made to meet 
the needs of several teachers, 

7. Programs need not be used in their entirety but 
may not be edited or electronically altered or 
combined, 

8. All copies must include the copyright notice as 
it appears in the program, and 

9. Institutions are expected to implement approp- 
riate control procedures. 

B. Recording Programs at Home for Classroom Use: 

Television programs recorded at home by teachers may be 
used in the classroom if they meet all the conditions of the 
Recording Guidelines, noted in V.A, above. 

C. Recording Public Broadcasting System Programs: 

1. For short -term retention, follow the guidelines, 
in V.A, above. 

2. For long-term retention, call the local PBS station 
for information about extended retention rights for 
specific programs. 

D. Recording off of Satellites: 

Programs may not be recorded from a television satellite 
unless the programs are authorized for free reception or the 
institution obtains a license to copy the programs. 



52 

59 



Copyright Quick Guide 



E. Transmission of Audiovisual Works: 

Films, videos, etc. may not be transmitted to classrooms by 
open- or closed-circuit television without a transmission license 
or written permission. 

F. Home-Use-Only and Rental-Store Videos: 

Programs labeled "For Home Use Only" or rented from 
rental stores may be used in classrooms under the following 
conditions: 

1. The programs are shown to students in a face-to-face 
setting, 

2. The programs are shown only in courses given for 
credit, 

3. The programs must be shown only in classrooms or 
other locations devoted to instruction, 

4. The programs must be legitimately-made copies, 
and 

5. The programs may not be shown for entertainment 
recreation, or reward. 

VI. Computer Software and Databases: 

A. Backup copies: 

One backup copy of computer software may be made for 
archival purposes in case the original is destroyed. 



53 

60 



Adoptable Copyright Policy 



B. Computer Laboratories: 

Except for the back-up copy exemption above, software 
may not be duplicated without appropriate licenses or agree- 
ments. 

C. Multiple Loading: 

Loading programs into several computers for simul- 
taneous use is only permitted with permission or a license* 

D. Networks: 

Computer software may not be used in a network (LAN or 
WAN) without permission or a license* 

E. Database Downloading: 

Downloading from a database is an infringement. Short- 
term, single-use retention is "accepted" by the copyright owners 
as a fair use, but long-term retention and multiple use of data 
requires a license. 

VII. Duplicating Films, Videotapes, Filmstrips, Slidesets, etc. 

A. An educator may duplicate a "small part" of an item 
for research or instruction. While no guidelines exist for 
copying these materials, the congressional reports 
accompanying the Copyright Revision Act of 1976 
suggest that copying ten percent of a program is 
reasonable, if the ten percent is not the "essence 9 * of 
the work. 

B. An educator may not: 

1. Reproduce an audiovisual work in its entirety, or 



61 54 



Copyright Quick Guide 



2. Convert one media format bto another, (e.g., film 
to video, filmstrip to slide, etc.), without 
permission. 

VIII. Microforms: 

Microforms may be copied according to the rules applying 
to the materials reproduced, (e.g., books, periodicals, poetry, 
etc.). However, microform copies of works in the public domain 
may be copied freely. 

IX. Newsletters: 

Only a very small part of a newsletter may be duplicated 
without permission. 

X. Artworks: 

Artworks may not be duplicated without written permis- 
sion except for illustrations copied under the "Agreement on 
Guidelines for Classroom Copying", (see II, A, above.) 

XI. Electrocopying (Computer Scanning): 

A. Artworks: scanning for the purpose of reproduction or 
for creating derivative works requires permission. 

B. Text: 

1. Scanning for research (e.g., textual analysis) is 
permissible, but 

2. Reproduction to create a copy or to prepare a 
derivative work requires permission. 



55 



Adoptable Copyright Policy 



XIL "Free and Benefit" Performances: 

Storytelling, poetry readings, and musical performances of 
non-dramatic works are authorized if (a) admission is free, or (b) 
the gate receipts, over and above costs, go to a charitable cause, 
and the performers and managers contribute their services. 

XIII. Student Projects: 

Students may copy materials as a learning experience. This 
includes the right to integrate various materials into com- 
puter/sound/visual programs if the resultant product remains the 
property of the student, is not placed into the school's collection 
and no copies are sold, broadcast, transmitted, or performed 
outside the classroom. 



56 



Chapter 5: 



OBTAINING PERMISSION 



It is not difficult to request permission to duplicate or 
adopt copyrighted materials. Well-established procedures are 
available. For most materials, complete two copies of the request 
form shown in Appendix H and send it to the copyright owner. 
Complete information must be supplied before permission can 
be given. It is important to maintain orderly records of permis- 
sions sought, denied, or granted. 

Permission to perform, broadcast, or transmit music is 
obtained from ASCAP, BMI, or SES AC. Their addresses appear 
in Appendix J. 

Permission to retain programs recorded off the air is 
obtained from the Television Licensing Center (TLC), listed in 
Appendix J. If TLC cannot supply permission, permission must 
be obtained from the firm that produced the program, not the 
network. 

Licenses to perform films and videos outside courses for 
credit are offered by Films, Inc., Swank Audio- Visuals, and the 
Motion Picture Licensing Corp. The addresses are in Appendix J. 



57 

64 



Adoptablc Copyright Policy 



Permission to copy computer software or use it on a net- 
work is obtained from the software publisher. Many software 
publishers sell a "site license" or "lab kit" to authorize making 
multiple copies of software or to authorize multiple loading. 



58 



Part III 



ADOPTABLE 
STUDENT COPYRIGHT MANUAL 

by 

Dr. Jerome K. Miller 

Copyright laws were developed centuries ago to protect 
authors. If an author wrote a book, poem, or article he or she 
could register it with a government agency. That assured the 
author that others could not copy the work without permission. 
(Permission frequently included paying a fee.) If an author dis- 
covered that someone had copied the work without permission, 
he or she could sue the offender. If the author proved his or her 
case in court, judges frequently forced the offenders to pay for 
their mistakes. 

The copyright law has changed over the centuries, but it 
still protects books, poems, maps, and magazine articles. Now, it 
also protects games, films, videos, computer programs, music 
videos, and other communication technologies. 



59 



66 



Adoptable Copyright Policy 



Fair Use: 

Today, the law also gives some rights to users, the ones who 
read books and watch videos. This "users right" started several 
centuries ago in England. People were being sued for copyright 
infringements for copying short quotations. At one point, an 
author could be sued — and loose — for copying one sentence 
without permission. The judges decided the law had gone too far 
so they began finding some defendants innocent on the basis of 
"fair quotation." The judges said it was not illegal to include short 
quotations in a book or article, so long as the quotation was brief. 

U.S. judges began applying "fair quotation," but they 
called it "fair use." Whatever it is called, "fair quotation" or "fair 
use" is the right of an individual to quote a small part of a 
copyrighted work without asking permission or paying a fee. 

When the U.S. copyright law was revised in 1976, it 
included a "fair use" section. The teachers' associations lobbied 
heavily for a "fair use" exemption authorizing teachers to copy 
for classroom use. The 1976 copyright law and the related docu- 
ments include specific exemptions authorizing teachers to copy 
pages from books, encyclopedias, and magazines to distribute to 
'heir students. It also authorizes teachers to videotape programs 
c.f the air for classroom use. Congress did not give teachers a 
"blank check" to copy everything. Some restrictions apply to 
copying by teachers. 

Unfortunately, the new copyright law did not include a 
specific exemption for copying by students. However, the fair use 
exemption in the law applies to students. In applying "fair use," 
it is important to apply the "injury test." Most authors are poorly 
paid for their work, so copying which deprives them of part of 
their income is "injurious" to them. Copying a few pages from a 
book probably does not "injure" the author. On the other hand, 
copying an entire book to avoid buying it deprives the author of 



60 



Student Copyright Manual 



income from the sale of that book. In that case, the copying is 
"injurious," and illegal. 

Students are most likely to injure copyright owners by 
copying computer software, records, cassettes, and videos. Copy- 
ing software, records, cassettes, or videos to avoid buying them 
injures many people. The royalties from music, videos, and 
software are shared by many people, including composers, 
musicians, and technicians. The loss of income from the sale of 
software, videos, records, and cassettes does injure these people. 
Therefore copying these items to avoid buying them is both 
"injurious," and illegal. 

Copying to complete an assignment: 

Students in computer classes often enter text, data, 
illustrations or logorithims as part of a class requirement. Stu- 
dents producing media projects (slides, film, video, etc.) often 
copy pictures from books, scenes from videos or TV programs, 
or music from records. In most cases, this appears to be a 
legitimate application of "fair use." 

When Congress rewrote the copyright law, it stated that 
copying by students as a "learning exercise" was a "fair use." If 
you copy pictures, music, or text to produce a media project, that 
copying may be a "fair use" as long as the copy is only used for a 
school project. You may submit the project for a grade and the 
teacher may show it in class. That much is probably a "fair use." 

The key question concerns future uses of the material you 
produce for class assignments. You may keep it for your own 
enjoyment and you probably can show it to a prospective 
employer during a job interview. However, if it includes copies 
of copyrighted works, it is probably illegal to share a computer 
program on a bulletin board or to exchange it with friends. In the 
case of media productions, it may be illegal for you to show it to 



61 

63 



Adoptabic Copyright Policy 



an audience. It is particularly important that you not broadcast 
the program or transmit it though a cable system without check- 
ing on copyright permissions. Your school Copyright Officer can 
help you decide if you must request permission for the items you 
copied. If the only thing you copied is music, the station or cable 
system's licenses may cover the music— but verify that before the 
broadcast or cable transmission. 

Piease remember, your education would not be possible 
without books, magazines, encyclopedias, computet programs, 
videos, and the like. You benefit from the creative efforts of 
others. Those who created those materials are entitled to a 
decent income from their labor. Copying more than a small part 
of a copyrighted work denies them of a fair return on their labor. 
It does not seem fair, and it is clearly illegal. 



62 

6^ 



APPENDICES 

A: Agreement on Guidelines for Classroom Copying 
in Not-for-Profit Educational Institutions With 
Respect to Books and Periodicals 65 

B: Guidelines for Educational Uses of Music 71 

C: Guidelines for Off-Air Recording of Broadcast 

Programming for Educational Purposes 75 

D: International Council for Computers in Education 

Suggested Software Use Guidelines 79 

E: CONTU Guidelines for Interlibrary Loans 87 

F: Appointment of an Institutional Copyright Officer . . .91 

G: Letter Informing Faculty of the Copyright Officer 

Appointment 93 

H: Permission Request Form 95 

I: Request for Off-Air Taping 97 

J: Selected Addresses 99 

K: Selected Passages from the Copyright Law 103 

63 7Q 



Appendix A 



AGREEMENT ON GUIDELINES FOR 
CLASSROOM COPYING IN NOT 
FOR PROFIT EDUCATIONAL 
INSTITUTIONS WITH RESPECT TO 
BOOKS AND PERIODICALS 

In a joint letter to Chairman Kastenmeier, dated March 
19, 1976, the representatives of the Ad Hoc Committee of Educa- 
tional Institutions and Organizations on Copyright Law Revision, 
and of the Authors League of America, Inc., and the Association 
of American Publishers, Inc., stated: 

You may remember that in our letter of March 8, 1976 we 
told you that the negotiating teams representing authors and 
publishers and the Ad Hoc Group had reached tentative agree- 
ment on guidelines to insert in the Committee Report covering 
educational copying from books and periodicals under Section 
107 of H.R. 2223 and S. 22, and that as part of that tentative 
agreement each side would accept the amendments to Sections 



65 71 

9 



Copyright Policy & Manuals 



107 and 504 which were adopted by your Subcommittee on March 
3, 1976. 

We are now happy to tell you that the agreement has been 
approved by the principals and we enclose a copy herewith. We 
had originally intended to translate the agreement into language 
suitable for inclusion in the legislative report dealing with Section 
107, but we have since been advised by committee staff that this 
will not be necessary. 

As stated above, the agreement refers only to copying from 
books and periodicals, and it is not intended to apply to musical 
or audiovisual works. 

The full text of the agreement is as follows: 

The purpose of the following guidelines is to state the 
minimum and not the maximum standards of educational fair use 
under Section 107 of H.R. 2223. The parties agree that the con- 
ditions determining the extent of permissible copying for educa- 
tional purposes may change in the future; that certain types of 
copying permitted under these guidelines may not be permissible 
in the future; and conversely that in the future other types of 
copying not permitted under these guidelines may be permissible 
under revised guidelines. 

Moreover, the following statement of guidelines is not 
intended to limit the types of copying permitted under the stand- 
ards of fair use under judicial decision and which are stated in 
Section 107 of the Copyright Revision Bill. There may be instan- 
ces in which copying which does not fall within the guidelines 
stated below may nonetheless be permitted under the criteria of 
fair use. 



66 



9 

coir 



Agreement on Guidelines for Classroom Copying 



GUIDELINES 

I. Single Copying for Teachers 

A single copy may be made of any of the following by or 
for a teacher at his or her individual request for his or her 
scholarly research or use in teaching or preparation to teach a 
class: 

A. A chapter from a book; 

B. An article from a periodical or newspaper; 

C. A short story, short essay or short poem, 
whether or not from a collective work; 

D. A chart, graph, diagram, drawing, 
cartoon or picture from a book, periodical, 
or newspaper. 

IL Multiple Copies for Classroom Use 

Multiple copies (not to exceed in any event more than one 
copy per pupil in a course) may be made by or for the teacher 
giving the course for classroom use or discussion; provided that: 

A. The copying meets the tests of brevity and 
spontaneity as defined below; and, 

B. Mets the cumulative effect test as defined 
below; and, 

C. Each copy includes a notice of copyright. 



rx 

67 

9 



Copyright Policy & Manuals 



Definitions 

Brevity 

(i) Poetry: (a) A complete poem if less than 250 words and 
if printed on not more than two pages or, (b) from a longer poem, 
an excerpt of not more than 250 words. 

(ii) Prose: (a) Either a complete article, story or essay of 
less than 2,500 words, or (b) an excerpt from any prose work of 
not more than 1,000 words or 10% of the work, whichever is less, 
but in any event a minimum of 500 words. 

[Each of the numerical limits stated in "i" and "ii" above 
may be expanded to permit the completion of an unfinished line 
of a poem or of an unfinished prose paragraph.] 

(iii) Illustration: One chart, graph, diagram, drawing, 
cartoon cr picture per book or per periodical issue. 

(iv) "Special* works: Certain works in poetry, prose or in 
"poetic prose" which often combine language with illustrations 
and which are intended sometimes for children and at other times 
for a more general audience fall short of 2,500 words in their 
entirety. Paragraph "ii" above notwithstanding such "special 
works" may not be reproduced in their entirety; however, an 
excerpt comprising not more than two of the published pages of 
such special work and containing not more then 10% of the words 
found in the text thereof, may be reproduced. 

Spontaneity 

(i) The copying is at the instance and inspiration of the 
individual teacher, and 

(ii) The inspiration and decision to use the work and the 
moment of its use for maximum teaching effectiveness are so 



✓ 4 



68 



Agreement on Guidelines for Classroom Copying 



close in time that it would be unreasonable to expect a timely 
reply to a request for permission. 

Cumulative Effect 

(i) The copying of the material is for only one course in 
the school In which the copies are made. 

(ii) Not more than one short poem, article, story, essay or 
two excerpts maybe copied from the same author, nor more than 
three frosa the same collective work or periodical volume during 
one class term. 

(iii) There shall not be more than nine instances of such 
multiple copying for one course during one class term. 

[The limitations stated in w ii" and w iii" above shall not 
apply to current news periodicals and newspapers and current 
news sections of other periodicals.] 

III. Prohibitions as to I and II Above 

Notwithstanding any of the above, the following shall be 
prohibited: 

(A) Copying shall not be used to create or to replace or 
substitute for anthologies, compilations or collective works. Such 
replacement or substitution may occur whether copies of various 
works or excerpts therefrom are accumulated or reproduced and 
used separately. 

(B) There shall be no copying of or from works intended 
to be "consumable" in the course of study or of teaching. These 
include workbooks, exercises, standardized tests and test book- 
lets and answer sheets and like consumable materials. 



69 



/ 0 



Copyright Policy & Manuals 



(C) Copying shall not: 



(a) 



substitute for the purchase of 
books, publishers' reprints or 
periodicals; 



(b) 



be directed by higher authority; 



(c) 



be repeated with respect to the 
same item by the same teacher 
from term to term. 



(D) No charge shall be made to the student beyond the 
actual cost of the photocopying. 

Agreed March 19, 1976. 

Ad Hoc Committee on Copyright Law Revision: 
By SHELDON ELLIOTT STEINBACH. 
Author-Publisher Group: 

Authors League of America: By IRWIN KARP, Counsel. 

Association of American Publishers, Inc.: By 
ALEXANDER C. HOFFMAN, Chairman, Copyright 
Committee. 



70 



Appendix B 



GUIDELINES FOR EDUCATIONAL 
USE OF MUSIC 

In a joint letter dated April 30, 1976, representatives of the 
Music Publishers' Association of the United States, Inc., the 
National Music Publishers 9 Association, Inc., the Music Teachers 
National Association, the Music Educators 9 National Con* 
ference, the National Association of Schools of Music, and the 
Ad Hoc Committee on Copyright Law Revision, wrote to Chair- 
man Kastenmeier as follows: 

During the hearings on H.R. 2223 in June 1975, you and 
several of your subcommittee members suggested that concerned 
groups should work together in developing guidelines which 
would be helpful to clarify Section 107 of the bill. 

Representatives of music educators and music publishers 
delayed their meetings until guidelines had been developed rela- 
tive to books and periodicals. Shortly after that work was com- 
pleted and those guidelines were forwarded to your 
subcommittee, representatives of the undersigned music 
organizations met together with representatives of the Ad Hoc 



71 ?7 



Copyright Policy & Manuals 



Committee on Copyright Law Revision to draft guidelines rela- 
tive to music. 

We are very pleased to inform you that the discussions thus 
have been fruitful on the guidelines which have been developed. 
Since private music teachers are an important factor in music 
education, due consideration has been given to the concerns of 
that group. 

We trust that this will be helpful in the report on the bill 
to clarify Fair Use as it applies to music. 

The text of the guidelines accompanying this letter is as 
follows: 

The purpose of the following guidelines is to state the 
minimum and not the maximum standards of educational fair use 
under Section 107 of HR 2223. The parties agree that the condi- 
tions determining the extent of permissible copying for educa- 
tional purposes may change in the future; that certain types of 
copying permitted under these guidelines may not be permissible 
in the future, the conversely that in the future other types of 
copying not permitted under these guidelines maybe permissible 
under revised guidelines. 

Moreover, the following statement of guidelines is not 
intended to limit the types of copying permitted under the stand- 
ards of fair use under judicial decision and which are stated in 
Section 107 of the Copyright Revision Bill. There may be instan- 
ces in which copying which does not fall within the guidelines 
stated below may nonetheless be permitted under the criteria of 
far use. 

A. Permissible Uses 

1. Emergency copying to replace purchased copies which 
for any reason are not available for an imminent performance 



72 

78 



Guidelines for Educational Use of Music 



provided purchased replacement copies shall be substituted in 
due course. 

2. For academic purposes other than performance, single 
or multiple copies of excerpts of works may be made, provided 
that the excerpts do not comprise a part of the whole which would 
constitute a performable unit such as a selection, movement or 
aria, but in no case more than 10% of the whole work. The 
number of copies shall not exceed one copy per pupil. 1 

3. Printed copies which have been purchased may be 
edited or simplified provided that the fundamental character of 
the work is not distorted or the lyrics, if any, altered or lyrics 
added if none exist. 

4. A single copy of recordings of performances by students 
may be made for evaluation or rehearsal purposes and may be 
retained by the educational institution or individual teacher. 

5. A single copy of a sound recording (such as a tape, disk 
or cassette) of copyrighted music may be made from sound 
recordings owned by an educational institution or an individual 
teacher for the purpose of constructing aural exercises or ex- 
aminations and may be retained by the educational institution or 
individual teacher. (This pertains only to the copyright of the 
music itself and not to any copyright which may exist in the sound 
recording.) 

B. Prohibitions 

1. Copying to create or replace or substitute for an- 
thologies, compilations or collective works. 

2. Copying of or from works intended to be "consumable** 
in the course of study or of teaching such as workbooks, exercises, 
standardized tests and answer sheets and like material. 



73 



lb 



coir 



Copyright Policy & Manuals 



3. Copying for the purpose of performance, except as in 
A(l) above. 

4. Copying for the purpose of substituting for the purchase 
Qf music, except as in A(l) and A(2) above. 

5. Copying without inclusion of the copyright notice which 
appears on the printed copy. 



NOTES 

1 Section A(2) was revised at the last moment, at the 
request of the joint committee that prepared the guidelines. The 
original text of Section 2 consisted of two parts. Part 2 (a) was 
redesignated in the final text as Part 2, as it appears near the top 
of the preceding page. Part 2 (b) of the orginal text was deleted. 
The. deleted text read: 

M (b) For academic purposes other than performance, a 
single copy of an entire performable unit (section, movement, 
aria, etc.) that is, (1) confirmed by the copyright proprietor to be 
out of print or (2) unavailable except in a larger work, may be 
made by or for a teacher solely for the purpose of his or her 
scholarly research or in preparation to teach a class." 



to 



74 



Appendix C 



GUIDELINES FOR OFF-AIR 
RECORDING OF BROADCAST 
PROGRAMMING FOR EDUCATIONAL 
PURPOSES 

In March of 1979, Congressman Robert Kastenmeier, 
chairman of the House Subcommittee on Courts, Civil Liberties, 
and Administration of Justice, appointed a Negotiating Commit- 
tee consisting of representatives of education organizations, 
copyright proprietors, and creative guilds and unions. The fol- 
lowing guidelines reflect the Negotiating Committee's consensus 
as to the application of "fair use" to the recording, retention, and 
use of television broadcast programs for educational purposes. 
They specify periods of retention and use of such off-air record- 
ings in classrooms and similar places devoted to instruction and 
for homebound instruction. The purpose of establishing these 
guidelines is to provide standards for both owners and users of 
copyrighted television programs. 

1. The guidelines were developed to apply only to off-air 
recording by nonprofit educational institutions. 

81 

75 



Copyright Policy & Manuals 



2. A broadcast program may be recorded off-air simul- 
taneously with broadcast transmission (including simultaneous 
cable retransmission) and retained by a nonprofit educational 
institution for a period not to exceed the first forty-five (45) 
consecutive calendar days after date of recording. Upon con- 
clusion of such retention period, all off-air recordings must be 
erased or destroyed immediately. "Broadcast programs" are 
television programs transmitted by television stations for recep- 
tion by the general public without charge. 

3. Off-air recordings may be used once by individual 
teachers in the course of relevant teaching activities, and 
repeated once only when instructional reinforcement is neces- 
sary, in classrooms and similar places devoted to instruction 
within a single building, cluster or campus, as weil c*s in the homes 
of students receiving formalized home instruction, during the 
first ten (10) consecutive school days in the forty-five (45) day- 
calendar day retention period. "School days" are school session 
days— not counting weekends, holidays, vacations, examination 
periods, and other scheduled interruptions —within the forty-five 
(45) calendar day retention period. 

4. Off-air recordings may be made only at the request of 
and used by individual teachers, and may not be regularly 
recorded in anticipation of requests. No broadcast program may 
be recorded off-air more than once at the request of the same 
teacher, regardless of the number of times the program may be 
broadcast. 

5. A limited number of copies may be reproduced from 
each off-air recording to meet the legitimate needs of teachers 
under these guidelines. Each such additional copy shall be sub- 
ject to all provision governing the original recording. 



76 



Guidelines for Off- Air Recording of Broadcast 



6. After the first ten (10) consecutive school days, off-air 
recordings may be used up to the end of the forty-five (45) 
calendar day retention period only for teacher evaluation pur* 
poses i.e., to determine whether or not to include the broadcast 
program in the teaching curriculum, and may not be used in the 
recording institution for student exhibition or any other non- 
evaluation purpose without authorization. 

7. Off-air recordings need not be used in their entirety, but 
the recorded programs may not be altered from their original 
content. Off-air recordings may not be physically or electronical- 
ly combined or merged to constitute teaching anthologies or 
compilations. 

8. All copies of off-air recording must include the 
copyright notice on the broadcast program as recorded. 

9. Educational institutions are expected to establish 
appropriate control procedures to maintain the integrity of these 
guidelines. 



83 

77 



Appendix D 



INTERNATIONAL COUNCIL FOR 
COMPUTERS IN EDUCATION (ICCE) 
SUGGESTED SOFTWARE USE 
GUIDELINES 

Background: 

During 1982-83, educators, software developers, and 
hardware and software vendors cooperated to develop the ICCE 
Policy Statement on Network and Multiple Machine Software. This 
Policy Statement was adopted by the Board of Directors of the 
International Council for Computers in Education (ICCE) in 
1983, and was published and distributed. It has received support 
from hardware and software vendors, industry associations and 
other education associations. One component of the Policy State* 
ment, the "Model District Policy on Software Copyright," has 
been adopted by school districts throughout the world. 

Now, three years later, as the educational computer 
market has changed and the software market has matured, ICCE 
has responded to suggestions that the policy statement be 



79 84 



Copyright Policy & Manuals 



reviewed by a new committee and revisions be made to reflect the 
changes that have taken place both in the market place and in the 
schools. 

The 1986-87 ICCE Software Copyright Committee is com- 
posed of educators, industry associations, hardware vendors, 
software developers and vendors, and lawyers. All the par- 
ticipants of this new Committee agree that the educational 
market should be served by developers and preserved by 
educators. To do so requires that the ICCE Policy Statement be 
revisited every few years while the industry and the use of com- 
puters in education are still developing. 

Responsibilities: 

In the previous Policy Statement, lists of responsibilities 
were assigned to appropriate groups: educators; hardware ven- 
dors; and software developers and vendors. The suggestion that 
school boards show their responsibility by approving a district 
copyright policy was met with enthusiasm, and many districts 
approved a policy based on the ICCE Model Policy. The sugges- 
tion that software vendors adopt multiple-copy discounts and 
offer lab packs to schools was likewise well received; many educa- 
tional software publishers now offer such pricing. It is therefore 
the opinion of this committee that, for the most part, the 1983 list 
of recommendations has become a fait accompli within the 
industry, and to repeat it here would be an unnecessary 
redundancy. 

Nevertheless, the Committee does suggest that all parties 
involved in the educational compuf >ng market be aware of what 
the other parties are doing to preserve this market, and that the 
following three recommendations be considered for adoption by 
the appropriate agencies. 



80 




International Council for Computers in Education 



School District Copyright Policy: 

The Committee recommends that school districts approve 
a District Copyright Policy that includes both computer software 
and other media. A Model District Policy on Software Copyright 
is enclosed. 

Particular attention should be directed to item five, recom- 
mending that only one person in the district be given the 
authority to sign software licensing agreements. This implies that 
such a person should become familiar with licensing and purchas- 
ing rights of all copyrighted materials. 

Suggested Software Use Guidelines: 

In the absence of clear legislation, legal opinion or case 
law, it is suggested that school districts adopt the enclosed Sug- 
gested Software Use Guidelines as guidelines for software use 
within the district. The recommendation of Guidelines is similar 
to the situation currently used by many education agencies for 
off-air video recording. While these Guidelines do not carry the 
force of law, they do represent the collected opinion on fair 
software use for nonprofit education agencies from a variety of 
experts in the software copyright field. 

Copyright Page Recommendations: 

The Committee recommends that educators look to the 
copyright page of software documentation to find their rights, 
obligations and license restrictions regarding an individual piece 
of software. 

The Committee also suggests that software publishers use 
the documentation copyright page to clearly delineate the users' 
(owners' or licensees*) rights in at least these five areas: 



81 




Copyright Policy & Manuals 



1. How # is a back-up copy made or obtained, how many are 
allowed, and how are the back-ups to be used (e.g., not to be used 
on a second machine at the same time)? 

2. Is it permissible to load the disk(s) into multiple com- 
puters for use at the same time? 

3. Is it permissible to use the software on a local area 
network, and will the company support such use? Or is a network 
version available from the publisher? 

4. Are lab packs or quantity discounts available from the 
publisher? 

5. Is it permissible for the owner or licensee to make copies 
of the printed documentation? or are additional copies available, 
and how? 

ICCE- Suggested Software Use Guidelines 

The 1976 U.S. Copyright Act and its 1980 Amendments 
remain vague in some areas of software use and its application to 
education. Where the law itself is vague, software licenses tend 
to be much more specific. It is therefore imperative that 
educators read the software's copyright page and understand the 
licensing restrictions printed there. If these uses are not 
addressed, the following Guidelines are recommended. 

These Guidelines do not have the force of law, but they do 
represent the collected opinion on fair software use by nonprofit 
educational agencies from a variety of experts in the software 
copyright field. 

Back-up Copy: The Copyright Act is clear in permitting 
the owner of software a back-up copy of the software to be held 



82 



International Council for Computers in Education 



for use as an archival copy in the event the original disk fails to 
function. Such back-up copies are not to be used on a second 
computer at the same time the original is in use. 

Multiple-loading: The Copyright Act is most unclear as it 
applies to loading the contents of one disk into multiple com- 
puters for use at the same time. In the absence of a license 
expressly permitting the user to load the contents of one disk into 
many computers for use at the same time, it is suggested that you 
not allow this activity to take place. The fact that you physically 
can do so is irrelevant. In an effort to make it easier for schools 
to buy software for each computer station, many software pub- 
lishers offer lab packs and other quantity buying incentives. Con- 
tact individual publishers for details. 

Local Area Network Software Use: It is suggested that 
before placing a software program on a local area network or 
disk-sharing system for use by multiple users at the same time, 
you obtain a written license agreement from the copyright holder 
giving you permission to do so. The fact that you are able to 
physically load the program on the network is, again, irrelevant. 
You should obtain a license permitting you to do so before you 
act. 

Model District Policy on Software Copyright 

It is the intent of [district] to adhere to the provisions of 
copyright laws in the area of microcomputer software. It is also 
the intent of the district to comply with the license agreements 
and/or policy statements contained in the software packages used 
in the district. In circumstances where the interpretation of the 
copyright law is ambiguous, the district shall look to the 
applicable license agreement to determine appropriate use of the 
software (or the district will abide by the approved Software Use 
Guidelines). 

83 88 

ERjC 



Copyright Policy & Manuals 



We recognize that computer software piracy is a major 
problem for the industry and that violations of copyright laws 
contribute to higher costs and greater efforts to prevent copying 
and/or lessen incentives for the development of effective educa- 
tional uses of microcomputers. Therefore, in an effort to dis- 
courage violation of copyright laws and to prevent such illegal 
activities: 

1. The ethical and practical implications of software piracy 
will be taught to educators and school children in all schools in 
the district (e.g., covered in fifth grade social studies classes). 

2. District employees will be informed that they are ex- 
pected to adhere to section 117 of the 1976 Copyright Act as 
amended in 1980, governing the use of software (e.g., each build- 
ing principle will devote one faculty meeting to the subject each 
year). 

3. When permission is obtained from the copyright holder 
to use software on a disk-sharing system, efforts will be made to 
secure this software from copying. 

4. Under no circumstances shall illegal copies of 
copyrighted software be made or used on school equipment. 

5. [Name or job title] of this school district is designated 
as the only individual who may sign license agreements for 
software for schools in the district. Each school using licensed 
software should have a signed copy of the software agreement. 

6. The principal at each school site is responsible for 
establishing practices which will enforce this district copyright 
policy at the school level. 

The Board of Directors of the International Council for 
Computers in Education approved this policy statement January, 



84 

ERLC 



International Council for Computers in Education 



1987. The members of the 1986 ICCE Software Copyright Com- 
mittee are: 

Sueann Ambron, American Association of Publishers 
Gary Becker, Seminole Co. Public Schools, Florida 
Daniel T. Brooks, Cadwalader, Wickersham & Taft 
LeRoy Finkel, International Council for Computers in 
Education 

Virginia Helm, Western Illinois University 

Kent Kehrberg, Minnesota Educational Computing Corp. 

Dan Kunz, Commodore Business Machines 

Bodie Marx, Mindscape, Inc. 

Kenton Pattie, International Communications Industries 
Assn. 

Carol Risher, American Association of Publishers 
Linda Roberts, US Congress, Office of Technology 
Assessment 

Donald A. Ross, Microcomputer Workshops Courseware 
Larry Smith, Wayne County Intermediate School Dist., 
Michigan 

Ken Wasch, Software Publishers* Association 



For more information write to the ICCE Software 
Copyright Committee, ICCE, University of Oregon, 1787 Agate 
St., Eugene, OR 97403. 



85 




Appendix £: 



CONTU GUIDELINES FOR 
INTERLIBRARY LOANS 

Guidelines for the proviso of Subsection 108(g)(2), 
Photocopying. 

1. As used in the proviso of subsection 108(g)(2), the 
words, "... such aggregate quantities as to substitute for a sub- 
scription or purchase of such work" shall mean: 

(a) with respect to any given periodical (as opposed to any 
given issue of a periodical), filled requests of a library or archives 
(a "requesting entity") within any calendar year for a total of six 
or more copies of an article cr articles published in such peri- 
odical within five years prior to the date of the request. These 
guidelines specifically shall not apply, directly or indirectly, to 
any request of a requesting entity for a copy or copies of an article 
or articles published in any issue of a periodical, the publication 
date of which is more than five years prior to the date when the 
request is made. These guidelines do not define the meaning, with 
respect to such a request, of u . . . such aggregate quantities as to 
substitute for a subscription to (such periodical)" 



87 



Copyright Policy & Manuals 



(b) With respect to any other mater described in subsec- 
tion 108(d), (including fiction or poetry), filled requests of a 
requesting entity within any calendar year for a total of six or 
more copies of phonorecords or from any given work (including 
a collective work) during the entire period when such material 
shall be protected by copyright. 

2. In the event that a requesting entity 

(a) shall have in force or shall have entered an order for a 
subscription to a periodical, or 

(b) has within its collection, or shall have entered an order 
for a copy or phonorecord of any other copyrighted work, 
material from either category of which it desires to obtain by copy 
from another library or archives (the "supplying entity"), because 
the material to be copied is not reasonably available for use by 
the requesting entity itself, then the fulfillment of such request 
shall be treated as though the requesting entity made such copy 
from its own collection. A library or archives may request a copy 
or phororecord from a supplying entity only under those cir- 
cumstances where the requesting entity would have been able, 
under the provisions of section 108, to supply such copy from 
materials in its own collection. 

3. No request for a copy or phonorecord of any material to 
which these guidelines apply may be fulfilled by the supplying 
entity unless such request is accompanied by a representation by 
the requesting entity that the request was made in conformity 
with these guidelines. 

4. The requesting entity shall maintain records of all re- 
quests made by it for copies or phonorecords of any materials to 
which these guideline apply and shall maintain records of the 
fulfillment of such requests, which records shall be retained until 
the end of the third complete calendar year after the end of the 



88 



CONTU Guidelines for Interlibrary Loans 



calendar year in which the respective request shall have been 
made. 

5. As part of the review provided for in subsection 108(i) t 
these guidelines shall be reviewed not later than five years from 
the effective date of this bill. 



89 

93 



Appendix F 



APPOINTMENT OF 
AN INSTITUTIONAL 
COPYRIGHT OFFICER 

(Letterhead) 
(date) 

(Name of institution) intends to adhere to the U.S. 
Copyright Law (Title 17, U.S. Code, Sect. 101, et. seq.). 

To facilitate the observance of the copyright law (name of 
person) is hereby named as the institution's Copyright Officer, 
effective (date). 

The copyright officer shall: 

1. implement the (name of institution) Board Copyright 
Policy, 

2. prepare and distribute a Faculty Copyright Manual, 



Copyright Policy & Manuals 



3. establish and implement procedures to assure that the 
institution and it's employees are in compliance with the 
copyright law, 

4. conduct copyright training programs to inform 
employees of the copyright law and the institutions copyright 
policy to enable them to perform their duties within the intent of 
the law and the policy, and 

5. maintain appropriate records of permissions, purchase 
agreements, and licenses. 

Signed: 



92 



Appendix G: 



LETTER INFORMING THE FACULTY 
OF THE APPOINTMENT OF A 
COPYRIGHT OFFICER 

On (date), (name of copyright officer) was appointed as 
the institution's Copyright Officer. 

He/She may be reached at (address and telephone num- 
ber). 

The Copyright Officer is not a police officer but is a source 
of information about the copyright law. He/she will offer a series 
of workshops so the faculty is informed about the copyright law. 
The copyright officer assists the faculty and the administration in 
complying with the law and should be considered as a helper and 
not a threat. The faculty and staff are encouraged to ask the 
copyright officer questions about the copyright law. 



So 



93 



Copyright Policy & Manuals 



The Copyright Officer shall: 

1. implement the Board Copyright Policy (copy attached), 

2. prepare and distribute a Faculty Copyright Manual, 

3. conduct copyright training programs to inform its 
faculty about the copyright law and the institution's copyright 
policy, 

4. answer employee questions related to the copyright law, 

5. post appropriate copyright warning notices on copying 
equipment, 

6. stay abreast of changes in the copyright law to keep the 
administration and employees informed, 

7. negotiate for permissions and licenses to duplicate, 
perform, or adopt copyrighted materials, and 

8. maintain appropriate records of permissions and 
licenses. 

Signed: 



94 

97 



Appendix H: 



PERMISSION REQUEST FORM 

(Institutional letterhead) 
(date) 

(Name and address) 
Dear Sir/Madam: 

Please may I/we have permission to copy the following: 

1. Work: (author, title, edition, and date) 

2. Pages: (list pages to be copied) 

3. Copying method: (photocopy, transfer to slides, etc.) 

4. Number of copies: 

5. Use of copies: (distribution to students, incorporated 
in a book, etc.) 

6. Distribution: (class handout, shown in class, etc.) 




Copyright Policy & Manuals 

7. Cost to audience: (distributed free, etc.) 

8. Type of copy: (photocopy, printout, slide, etc.) 

9. Modifications: (if any) 

10. Intended date of use: 

Enclosed is a photocopy of the material requested. 

Two copies of this form are being sent. If you will grant 
permission, please check the appropriate box, sign, and return 
one copy to me. The other copy can be retained for your files. 

Thank you. 

Sincerely, 

(Signature) 
(Name typed) 
(Title) 

Permission granted as per request 

□ Permission denied. 

Conditions if any: 

Signature: 

Title: 

Date: 



5S 



96 



Appendix I 



REQUEST FOR OFF-AIR TAPING 

The "Guidelines for Off-Air Recording of Broadcast 
Programming for Education Fur poses" requires that records be 
maintained to assure that the conditions in the fair-use guidelines 
are observed. The following information is necessary to assure 
that the institution complies with the criteria. Please complete all 
the information and return the form to the Copyright Officer. 

Instructor: 

School/Department: 

Class: 

PROGRAM RECORDED AT SCHOOL 

Title of Program: 

Station or Channel: Length of Program: 

Date Recorded: Date of Use: 

Required Erase Date: Date Erased: 



ERLC 



97 

too 



Copyright Policy & Manuals 



PROGRAM RECORDED AT HOME 

Title of Program: 

Station or Channel: Length of Program: 

Date Recorded: Date of Use: 

Required Erase Date: Date Erased: 

Would you recommend this material for purchase, lease 
or license? 

CD Highly Recommended O Recommended 
Not Recommended 

How many times would you use this program each 
year? 

The Fair Use Guidelines are summarized on the back of 
this form. (See Chapter 4, Part V.) 

(Signature) 



ERIC 



98 

101 



Appendix J: 



SELECTED ADDRESSES 



General Copyright Information: 
U. S. Copyright Office 

Information and Publications Section LM-455 
Library of Congress 
Washington, D. C. 20559 
202-479-0700 

Television Network Offices: 
ABC 

Wide World of Learning, Inc. 
1330 Avenue of the Americas 
New York, NY 10019 
212-887-5706 



CBS 

51 West 52nd Street 
New York, NY 10019 
212-975-3200 



99 



9 

:RIC 



102 



Copyright Policy & Manuals 



CBS News 

524 West 52nd Street 
New York, NY 10019 
212-975-4321 

NBC 

30 Rockefeller Plaza 
New York, NY 10112 
212-664-4966 

PBS Video 

475L'Enfant Plaza SW 
Washington, D. C. 20024 
800-424-7963 

Sources for Public Television Programs: 

PBS Video 

1320 Braddock Place 

Alexandria, VA 22314-1698 

800-424-7963 

Agency for Instructional Technology 
Box A 

Bloomington, Indiana 47402 
800-457-4509. 

In Indiana, Alaska or Hawaii, call collect: 812-339-2203 



1 03 100 



Selected Addresses 



Great Plains National 
1800 North 33rd Street 
P.O. Box 80669 
Lincoln, Nebraska 68501 
800-228-4630 

Television Performing Rights Agencies: 
Films, Inc. 

5547 Ravenswood Ave. 
Chicago, IL 60640 
800-323-4222 

Swank Audio-Visuals, Inc. 

2800 Market St. 

St. Louis, MO 63103 

314-534-1940 

Motion Picture Licensing Corp. 
1177 Summer St., 
P.O. Box 3838 
Stamford, CT 06905-3838 
203-353-1600 

Music Performing Rights Agencies: 

American Society of Composers, Authors avd Publishers 

(ASCAP) 

1 Lincoln Plaza 

New York, NY 10023 

212-595-3050 



:RLC 



101 



104 



Copyright Policy & Manuals 



Broadcast Music, Inc. (BMI) 
320 West 57th St. 
New York, NY 10019 
212-586-2000 



SESAC.Inc 

10 Columbus Circle 
New York, NY 10019 
212-586-3450 

(Formerly Society of European State Authors 
Composers) 



105 



102 



( 



3 ' 



1- Appendix^ tK: 



SELECTED PASSAGES ,FR s gM THE 
COPYRIGHT^ L/^W 5 



Sect. 106. Exclusive Rights: 1 ^ 

Subject to sections 107 through 118, t^owncr of copyright 
under this title ha^the exclusive rights to demand to authorize any 
of the following: 

1 (1) to reproduce the copyrighted work in copies or 
phonbrecords; ^ 



(2) to prepare derivative works^based* upon the 
copyrighted work; .jw * 

I ] \f 

(3) to ^(stribute copies or phorforecords of the 

copyrighted wor^to the public by sale or other transfer ot iAvner- 
ship, or by rental t lease, or lending; y 

h ; 

(4) in the case of literary, music^/dramatic, and 
choreographic works, pantomimes, and mptij^pictures and 

* 1 l i 



103 



9 

ERIC 



Copyright Policy & Manuals 



other audiovisual works, to perform thr copyrighted work public- 
ly; and 

(5) in the case of literary, musical, dramatic, and 
choreographic works, pantomimes, and pictorial, graphic, or 
sculptural works, including the individual images of a motion 
picture or other audiovisual work, to display the copyrighted 
work publicly. 

Sect. 107. Fair-Use. 

/ Notwithstanding the provisions of section 106, the fair use 
of a copyrighted work, including such use by reproduction in 
copies or phonorecords or by any other means specified by that 
section, for purposes such as criticism, comment, news reporting, 
teaching (including multiple copies for classroom use), scholar- 
ship, or research, is not an infringement of copyright. In deter- 
mining whether the use made of a work in any particular case is 
a fair use the factors to be considered shall include — 

(1) the purpose and character of the use, including 
whether such use is of a commercial nature or is for nonprofit 
education purposes; 

(2) the nature of the copyrighted work; 

(3) the amount and substantiality of the portion used in 
relation to the copyrighted work as a whole; and 

(4) the effect of the use upon the potential market for or 
value of the copyrighted work. 

Sect. 108. Library Photocopying. 

(a) Notwithstanding the provisions of section 106, it is not 
an infringement of copyright for a library or archives, or any of 
its employees acting within the scope of their employment, to 



104 

107 



Selected Passages From the Copyright Law 



reproduce no more than one copy or phonorecord of a work, or 
to distribute such copy or phonorecord, under the conditions 
specified by this section if — 

(1) the reproduction or distribution is made without any 
purpose of direct or indirect commercial advantage; 

(2) the collections of the library or archives are (i) open 
to the public, or (ii) available not only to researchers affiliated 
with the library or archives or with the institution of which it is a 
part, but also to other persons doing research in a specialized 
field; and 

(3) the reproduction or distribution of the work includes 
a notice of copyright. 

(b) The rights of reproduction and distribution under this 
section apply to a copy or phonorecord of an unpublished work 
duplicated in facsimile form solely for purposes of preservation 
and security or for deposit for research use in another library or 
archives of the type described by clause (2) of subsection (a), if 
the copy or phonorecord reproduced is currently in the collec- 
tions of the library or archives. 

(c) The right of reproduction under this section applies to 
a copy or phonorecord of a published work duplicated in fac- 
simile form solely for the purpose of replacement of a copy or 
phonorecord that is damaged, deteriorating, lost, or stolen, if the 
library or archives has, after a reasonable effort, determined that 
an unused replacement cannot be obtained at a fair price. 

(d) The rights of reproduction and distribution under this 
section apply to a copy, made from the collection of a library or 
archives where the user makes his or her request or from that of 
another library or archives, of no more than one article or other 
contribution to a copyrighted collection or periodical issue, or to 



ERLC 



105 



Copyright Policy & Manuals 



a copy or phonorecord of a small part of any other copyrighted 
work, if - 

(1) the copy or phonorecord becomes the property of the 
user, and the library or archives had had no notice that the copy 
or phonorecord would be used for any purpose other than private 
study, scholarship, or research; and 

(2) the library or archives displays prominently, at the 
place where orders are accepted, and includes on its order form, 
a warning of copyright in accordance with requirements that the 
Register of Copyrights shall prescribe by regulation. 

(e) The rights of reproduction and distribution under this 
section apply to the entire work, or to a substantial part of it, 
made from the collection of a library or archives where the user 
makes his or her request or from that of another library or 
archives, if the library or archives has first determined, on the 
basis of a reasonable investigation, that a copy or phonorecord 
of the copyrighted work caunot be obtained at a fair price, if — 

(1) the copy or phonorecord becomes the properly of the 
user, and the library or archives had had no notice that the copy 
or phonorecord would be used for any purpose oiher than private 
study, scholarship, or research; and 

(2) the library or archives displays prominently, at the 
place where orders are accepted, and includes on its order form, 
a warning of copyright in accordance with requirements that the 
Register of Copyrights shall prescribe by regulation. 

(f) Nothing in this section — 

(1) shall be construed to impose liability for copyright 
infringement upon a library or archives or its employees for the 
unsupervised use of reproducing equipment located on its 



106 

103 



Selected Passages From the Copyright Law 



premises: Provided, that such equipment displays a notice that 
the making of a copy may be subject to the copyright law, 

(2) excuses a person who uses such reproducing equip- 
ment or who request a copy or phonorecord under subsection (d) 
from liability for copyright infringement for any such act, or for 
any later use of such copy or phonorecord, it it exceeds fair use 
as provided by section 107; 

(3) shall be construed to limit the reproduction and dis- 
tribution by lending of a limited number of copies and excerpts 
by a library or ai chives of an audiovisual news program, subject 
to clauses (1), (2), and (3) of subsection (a); or 

(4) in any way affects the right of fair use as provided by 
section 107, or any contractual obligations assumed at any time 
by the library or archives when it obtained a copy or phonorecord 
of a work in its collections. 

(g) The rights of reproduction and distribution under this 
section extend to the isolated and unrelated reproduction or 
distribution of a single copy or phonorecord of the same material 
on separate occasions, but do not extend to cases where the 
library or archives, or its employee — 

(1) is aware or has substantial reason to believe that it is 
engaging in the related or concerted reproduction or distribution 
of multiple copies or phonorecor ds of the same material, whether 
made on one occasion or over a period of time, and whether 
intended for aggregate use by one or more individuals or for 
separate use by the individual members of a group; or 

(2) engages in the systematic reproduction or distribution 
of single or multiple copies or phonorecords of material 
described in subsection (d): Provided, That nothing in this clause 
prevents a library or archives from participating in interlibrary 



107 1 1 0 



Copyright Policy & Manuals 



arrangements that do not have, as their purpose or effect, that 
the library or archives receiving such copies or phonorecords for 
distribution does so in such aggregate quantities as to substitute 
for a subscription to or purchase of such work. 

(h) The rights of reproduction and distribution under this 
section do not apply to a musical work, a pictorial, graphic or 
sculptural work, or a motion picture or other audiovisual work 
other than an audiovisual work dealing with news, except that no 
such limitation shall apply with respect to rights granted by 
subsections (b) and (c), or with respect to pictorial or graphic 
works published as illustrations, diagrams, or similar adjuncts to 
works of which copies are reproduced or distributed in accord- 
ance with subsections (d) and (e). 

(i) Five years from the effective date of this Act, and at 
five-year intervals thereafter, the Register of Copyrights, after 
consulting with representatives of authors, book and periodical 
publishers, and other owners of copyrighted materials, and with 
representatives of library users and librarians, shall submit to the 
Congress a report setting forth the extent to which this section 
has achieved the intended statutory balancing of the rights of 
creators, and the needs of users. The report should also describe 
any problems that may have arisen, and present legislative or 
other recommendations, if warranted. 

Sect. 110. Exemption of Certain Performances and Displays 

Notwithstanding the provisions of section 106, the follow- 
ing are not infringement of copyright: 

(1) performance or display of a work by instructors or 
pupils in the course of face-to-face teaching activities of a non- 
profit educational institution, in a classroom or similar place 
devoted to instruction, unless, in the case of a motion picture or 
other audio-visual work, the performance, or the display of 



108 




Selected Passages From the Copyright Law 



individual images, is given by means of a copy that was not 
lawfully made under this title, and that the person responsible for 
the performance knew or had reason to believe was not lawfully 
made; 

(4) performance of a nondramatic literary or musical 
work otherwise than in a transmission to the public, without any 
purpose of direct or indirect commercial advantage and without 
payment of any fee or other compensation for the performance 
to any of its performers, promoters, or organizers, if — 

(A) there is no direct or indirect admission charge; or 

(B) the proceeds, after deducting the reasonable costs of 
producing the performance, are used exclusively for educational, 
religious, or charitable purposes and not for private financial 
gain, except where the copyright owner has served notice of 
objection to the performance under the following conditions; 

(i) the notice shall be in writing and signed by the 
copyright owner or such owner's duly authorized agent; and 

(ii) the notice shall be served on the person responsible for 
the performance at least seven days before the date of the per- 
formance, and shall state the reasons for the objection; and 

(iii) the notice shall comply, in form, ccatent, and manner 
of service, with requirements that the Register of Copyrights 
shall prescribe by regulation; 

Sect. 117. Scope of exclusive rights: Use in conjunction with 
computers and similar information systems 

Notwithstanding the provisions of section 106, it is not an 
infringement for the owner of a copy of a computer program to 




f 



Copyright Policy & Manuals 



make or authorize the making of another copy or adaptation of 
that computer program provided: 

(1) that such a new copy or adaptation is created as an 
essential step in the utilization of the computer program in con- 
junction with a machine and that it is used in no other manner, 
or 

(2) that such new copy or adaptation is fo* archival pur- 
poses only and that all archival copies are destroyed in the event 
that continued possession of the computer program should cease 
to be rightful. 

Any exact copies prepared in accordance with the 
provisions of this section may be leased, sold, or otherwise trans- 
ferred, along with the copy from when such copies were 
prepared, only as part of the lease f sale, or other transfer of all 
rights in the program. Adaptations 50 prepared may be trans- 
ferred only with the authorization of the copyright owner." 

Sect. 101. Definitions 

The following definition applies to Sect. 117 above. 

Section 101 "A 'computer program* is a set of statements 
or instructions to be used directly or indirectly in a computer in 
order to bring about a certain result." 



113 110 



SELECTED BIBLIOGRAPHY 



Association of Research Libraries. University Copyright Policies 
in ARI Institutions. SPEC Flyer #138, October 1987, 
Washington, D.C.: Office of Management Studies, 1527 
New Hampshire Avenue, NW, 20036. 

Copyright Law: Fart 1: Video/Film and Computer Software; Part 2: 
Print and Music. Great Plains National Library, 1986. 
(Videocassette, 40 min.) 

Copyright Law: What Every School, College and Public Library 
Should Know. Association for Information Media and 
Equipment (AIME), 1987. (Videocassette, 21 min.) 

Helm, Virginia. Software Quality and Copyright: Issues in Com- 
puter Assisted Instruction. Washington, D.C.: Association 
for Educational Communications and Technology, 1984. 

Helm, Virginia. Wlxat Educators Should Know about Copyright. 
Bloomington, Ind.: Phi Delta Kappa Educational Founda- 
tion, 1986. 

Johnson, Beda. How to Acquire Legal Copies of Video Programs. 
San Diego, Calif.: Video Resource Enterprise, 1989. 



Ill 



L 14 



Adoptable Copyright Policy 



Johnson, Donald F. Copyright Handbook. 2nd ed. New York: R.R. 
Bowker Co., 1982. 

Lawrence, John Shelton and Bernard Timberg. Fair Use and Free 
Inquiry: Copyright Law and the News Media. 2nd ed. 
Norwood, N.J.: Ablex Publishing Corporation, 1989. 

Miller's Copyright Newsletter, Friday Harbor, WA; Copyright In- 
formation Services, Quarterly. 

Miller, Jerome K., et. al. Video Copyright Permissions. Friday 
Harbor, WA: Harbor View Publications, Inc., 1989. 

Miller, Jerome K. Using Copyrighted Videocassettes in Class- 
rooms, Libraries, and Training Centers. 2nd ed. Friday Har- 
bor, WA: Copyright Information Services, 1988. 

The Official Fair Use Guidelines, 4th ed. Friday Harbor, WA: 
Copyright Information Services, 1989. 

Reed, Mary Hutchings. The Copyright Primer for Librarians and 
Educators. American Library Association, 1987. 

SAT Guide: Cable's Satellite Magazine, CommTek Publishing 
Co., P.O. Box 53, Boise, Idaho 83707. 

Sinofsky, Esther R. A Copyright Primer for Educational and 
Industrial Media Producers. Friday Harbor, WA: 
Copyright Information Services, 1988. 

Sinofsky, Esther R. Off-Air Videotaping in Education: Copyright 
Issues, Decision, Implications. New York: R. R. Bowker 
Co., 1984. (Now distributed by Copyright Information Ser- 
vices.) 



112 

115 



Selected Bibliography 



Talab, R.S. Copyright and Instructional Technologies: A Guide to 
Fair Use and Permissions. 2nd ed. Washington, D.C.: As- 
sociation for Education Communications and Technology, 
1989, 

Talab, R. S. Commonsense Copyright: A Guide to the New Tech- 
nologies. Jefferson, N.C.: McFarland. 1986. 

U.S. Copyright Office. Copyright Act of 1976. Washington, D.C.: 
U.S. Government Printing Office, 1976. 

U.S. Copyright Office. General Guide to the Copyright Act of 1976. 
Washington, D.C.: U.S. Government Printing Office, 1976. 

Vlcek, Charles W. Copyright Policy Development: A Resource 
Book for Educators. Friday Harbor, WA: Copyright 
Information Services, 1987. 



113 116 



Index 



Anthologies 28 

Artworks 45 

Cable Transmission 39 

Comic Books 27 

Competing Uses 17 

Computer Software 41 

Computer User Agreement 43 

Consumable Works 28 

Contributory Infringers 21 

Copying 2, 12 

Copying Records 35 

Copyright Notice 13 

Copyright Officer 2-3,10,51 

Copyright Protection 11 

Copyright Registration 13 

Copyright Warning Notices 18 

Database Downloading 43 

Derivative Works 12 

Displays 13 

Distribute Copies 12 

Dramatic Works 46 

Duration of Copyright- 13 

Elcctrocopying (Computer Scanning) 45 

Employee Dismissal 3 

Exclusive Rights 12 

Fair Use 8,16 

Fair -Use Guidelines 18 

Filnstrips 44 

First Publication 12 




HomeUseOnry 40 

Infringements 3 

InjuryTest 8 

Innocent Infringers 20 

Interiibrary Loans 31 

libraries ^kJ Archives 28 

Library Reserve 32 

Microforms 44 

Multiple Loading 42 

Musical Recordings 34 

Networks 43 

Newsletters 45 

Nontheatrical Public Performance Licenses 16 

Nontheatrical Public Performance Rights 40 

Penalties for Infringement 20 

Performances 13,35 

Performing 2 

Permission 63 

Poetry 26 

Print Materials 25 

Public Broadcasting Service (PBS) Programs 39 

Public Domain 15 

Recording Commercial Tclevison Programs 38 

Recording Tclevison Programs Off Satellite 38 

Rental-Store Videos 39 

Right of First Publication 15 

Rule of Reason 16 

Sheet Music 33 

Slide Sets 44 

Software Copying Warning 42 

Sound Recordings 34 

Student Copying 7 

Student Projects 46 

Television News Programs 30 

Television Programs 36 

Transmissions and Broadcasts 36 

Unpublished Works 15 

Users Right 8 

Works Made for Hire 14 



ERJC 



116 

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